How Confusing Food Date Labels Lead To MASSIVE Food Waste in America

SEptember 2013
REPORT R:13-09-A
The Dating Game:

How Confusing Food Date Labels
Lead to Food Waste in America
Authors
This report was produced in partnership between the Harvard Food Law and Policy Clinic and the Natural Resources
Defense Council.
The lead author of this report is Emily Broad Leib, Director of the Harvard Law School Food Law and Policy Clinic (a division
of the Center for Health Law and Policy Innovation), with input, editing, and production support from Dana Gunders at the
Natural Resources Defense Council.
Additional coauthors include: Juliana Ferro, Annika Nielsen, Grace Nosek, and Jason Qu.
Portions of this report are based on previous research and writing by Jacqueline Pierluisi, Lauren Sidner, and Nathan Rosenberg,
students in the Harvard Food Law and Policy Clinic, with research assistance from Harvard Food Law Society members Amanda
Ravich, Elizabeth Rosen, Erin Schwartz, Jane Wang Williams, and Margaret Wilson.
Acknowledgements
This report would not have been possible without the assistance and cooperation of Mitzi Baum, Kendra Bird, Jean Buzby,
Erin Daly, Dr. Angela Fraser, Dr. Elise Golan, Wayne Melichar, Dr. Elliot Ryser, Alex Schmitt, and Jean Schwab.
We’d also like to thank the following people for reviewing this report. Reviewers do not necessarily concur with the paper’s
recommendations but have advised on portions of its content.
Jose Alvarez, Senior Lecturer, Harvard Business School; former CEO, Stop & Shop/Giant Landover
Jonathan Bloom, Author of American Wasteland
Sarah Klein, Senior Staff Attorney, Food Safety Program, Center for Science in the Public Interest
Dr. Theodore Labuza, Professor of Food Science and Engineering, Univ. of Minnesota
Dr. Roni Neff, Program Director, Food System Sustainability and Public Health, Johns Hopkins Center for a Livable Future
Doug Rauch, Founder, Daily Table; former President, Trader Joe’s
About the Harvard Law School Food Law and Policy Clinic
The Harvard Food Law and Policy Clinic, a division of the Center for Health Law and Policy Innovation, is an experiential
teaching program of Harvard Law School that links law students with opportunities to serve clients and communities
grappling with various food law and policy issues. The Clinic strives to increase access to healthy foods, prevent diet-related
diseases, and assist small and sustainable farmers and producers in participating in local food markets. For more information,
visit http://blogs.law.harvard.edu/foodpolicyinitiative/ or follow on Twitter @HarvardFLPC.
About NRDC
The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than
1.3 million members and online activists. Since 1970, NRDC’s lawyers, scientists, and other environmental specialists have
worked to protect the world’s natural resources, public health, and the environment. NRDC has offices in New York City,
Washington, D.C., Los Angeles, San Francisco, Chicago, Montana, and Beijing. Visit them at www.nrdc.org and follow them on
Twitter @NRDC.
Table of Contents
Executive Summary..............................................................................................................................2
Introduction...........................................................................................................................................5
CHAPTER 1:
History of U.S. Date Labeling: A Piecemeal Response to Consumer Interest in Date Labels......................6
CHAPTER 2:
The Current Regulatory Regime....................................................................................................................8
Federal Law...............................................................................................................................................8
Federal Voluntary Guidance.....................................................................................................................11
State Law................................................................................................................................................12
Local Regulations....................................................................................................................................15
The Role of Industry................................................................................................................................15
Chapter 3:
Shortcomings of the Current System..........................................................................................................17
Inconsistent and Unreliable Wording and Methods of Determination....................................................17
Consumer Confusion and Misinterpretation of Link to Food Safety. ......................................................19
Consumer Food Waste............................................................................................................................21
Economic Losses and Inefficiencies for Manufacturers, Distributors, and Retailers..............................22
Challenges for Food Recovery Initiatives and Anti-Hunger Organizations...............................................22
Chapter 4:
Recommendations......................................................................................................................................23
Standardize and Clarify the Food Date Labeling System Across the United States................................23
The Role of Industry, Government, and Consumers...............................................................................25
Appendix A:
Congressional Delegation of Food Labeling Authority to Agencies.............................................................28
Appendix B:
State Requirements in Brief; Supporting Charts for Figures 2 and 3..........................................................32
Appendix C:
State Date Labeling Regulations in Full.......................................................................................................34
Endnotes.................................................................................................................................................55
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PAGE 1 The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America
Executive Summary
T
he waste of edible food by consumers, retailers, and manufacturers poses a
significant burden to the American food system. Wasted food costs consumers
and industry money; squanders important natural resources that are used to
grow, process, distribute, and store America’s food supply; and represents a missed
opportunity to feed the millions of food insecure households in the United States that
are struggling to access healthy, affordable food. Misinterpretation of the date labels on
foods is a key factor leading to this waste.
Photo: www.foodwastemovie.com
Improving date labeling policies and practices can system, and there has been a dearth of rigorous policy
decrease consumer confusion, which will not only reduce analyses of how these labels affect consumers’ choices
food waste, but also improve food safety. Date labels on surrounding purchasing and discarding food products.
food come in a dizzying variety of forms including “use This policy brief examines the historical impetus for
by,” “best before,” “sell by,” and “enjoy by” dates, yet these placing dates on food—namely a desire to indicate products’
simple markers are both poorly understood and surprisingly freshness—and the ways in which the system has failed to
under-regulated, such that their meanings and timeframes meet this goal, while creating a range of ancillary problems.
are generally not defined in law. Because regulators, industry Relevant federal laws and authorities are described along
players, and citizens have become accustomed to seeing with a review of the legislative history on this topic, and a
date labels on many food products over time, policymakers comparison of state laws related to food date labeling is
have not asked important questions about the date labeling provided. The paper then describes why and how date labels
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contribute to the waste of edible food in the United States recommendations on how to standardize and clarify
and explains specifically how: date labels will help establish a more effective system of
n The lack of binding federal standards, and the resultant consumer-facing dates that consumers can understand
state and local variability in date labeling rules, has led to and trust. The system should be consistent across
a proliferation of diverse and inconsistent date labeling products to the extent it makes sense.
practices in the food industry. Such inconsistency exists n Establish standard, clear language for both
on multiple levels, including whether manufacturers quality-based and safety-based date labels: The
affix a date label in the first place, how they choose which language used before dates on food products should
label phrase to apply, varying meanings for the same be clarified and standardized to better inform
phrase, and the wide range of methods by which the date consumers of the meaning of different dates. The
on a product is determined. The result is that consumers words used should (1) be uniform for a particular
cannot rely on the dates on food to consistently have the meaning across the country and across products;
same meaning. (2) be unambiguous in the information they convey;
➢n This convoluted system is not achieving what date and (3) clearly delineate between safety-based and
labeling was historically designed to do—provide quality-based dates.
indicators of freshness. Rather, it creates confusion and n Include “freeze by” dates and freezing information
leads many consumers to believe, mistakenly, that date where applicable: Promote the use of “freeze by”
labels are signals of a food’s microbial safety, which dates on perishable food products to help raise
unduly downplays the importance of more pertinent consumer awareness of the benefits of freezing foods
food safety indicators. and the abundance of food products that can be
n This confusion also leads to considerable amounts of successfully frozen in order to extend shelf life.
avoidable food waste, as the mistaken belief that past- n Remove or replace quality-based dates on non-
date foods are categorically unsuitable for consumption perishable, shelf-stable products: Removing “best
causes consumers to discard food prematurely. before” or other quality dates from shelf-stable, non-
n Inconsistent date labeling policies and practices harm perishable foods for which safety is not a concern
the interests of manufacturers and retailers by creating would reduce waste of these products and increase
increased compliance burdens and food waste at the the weight given to labels placed on products that
manufacturer/retail level. do have safety concerns. Some type of date may still
be useful, such as an indication of shelf life after
n Date labeling practices hinder food recovery and opening (e.g. “Best within XX days of opening”)
redistribution efforts by making the handling of past- or the date on which the product was packed
date foods administratively and legally complex. (e.g., “Maximum quality XX months/years after
After analyzing these five core problems with the pack date”).
contemporary date labeling regime, this report will introduce n Ensure date labels are clearly and predictably
recommendations on how to begin to remedy the food waste located on packages: Consumers should be able
and food safety issues related to date labeling, by creating to easily locate and understand date labeling
a system in which date labels more clearly communicate information on packages, perhaps through the use of
information. Recommendations are broken into two a standard “safe handling” information box, akin to
sections: the first section proposes key changes to the date the Nutrition Facts panel.
labeling system across the United States, and the second
section identifies relevant stakeholders and describes actions
that each should take to address the issue.
In brief, the recommendations are as follows:
I. Standardize and Clarify the Food

Date Labeling System Across the
United States
1. Make “sell by” dates invisible to the consumer: “Sell by”
dates generate confusion and offer consumers no useful
guidance once they have brought their purchases home.
Therefore, “sell by” and other date labels that are used
for stock control by retailers should be made invisible to
consumers. Products should only display dates that are
intended to communicate to the consumer.
2. Establish a reliable, coherent, and uniform
consumer-facing dating system: The following five
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n Employ more transparent methods for 2. Government: Congress, federal administrative agencies,
selecting dates: Create a set of best practices that state legislatures, and state agencies should work towards
manufacturers and retailers can use to determine a system of date labeling that is more standardized,
date labels for products, and consumers can learn more easily understood by consumers, and less arbitrary.
about if interested. The federal Food and Drug Administration and U.S.
3. Increase the use of safe handling instructions and Department of Agriculture have existing authority
“smart labels”: Provide clear, pertinent food safety to regulate misleading labels, and should use this
information alongside date labels. This could include authority to reduce confusion around date labeling.
additional phrases, QR codes that allow consumers to Otherwise, Congress can act to create overarching federal
scan for more information, or “smart labels” like time- legislation. Regardless of whether a federal law is passed,
temperature indicators. existing federal guidance should be strengthened and
streamlined so that states following such guidance
will begin to implement more similar state laws and
II. The Role of Industry, Government regulations.
and Consumers
3. Consumers and Consumer-Facing Agencies and
Collaboration amongst different stakeholders and entities is
Organizations: Increased consumer education—
necessary to standardize and clarify the current date labeling
covering everything from the meaning of date labels,
regime. Each stakeholder has a role to play to improve the
to the importance of proper refrigeration temperature,
system. Three groups of stakeholders have been identified;
to strategies on how to determine whether food is safe
solutions targeted at each group include:
and wholesome to eat—will be crucial regardless of
1. Food Industry Actors: Industry actors can take whether policymakers decide to implement changes to
meaningful steps to reduce date label confusion, reduce the current date labeling regime or to maintain the status
food waste, and improve consumer safety by: quo. Federal, state, and local agencies and organizations
n Converting to a system which adopts the can conduct consumer outreach and education to build
recommended changes above: making “sell by” awareness of proper food safety, handling, and storage,
information invisible to consumers; establishing as well as the high rates of food waste due to date label
a standardized, easily understandable consumer- confusion and the detrimental effects of such waste.
facing dating system; and providing more safe Consumers can act now by educating themselves as well.
handling information; Revising the convoluted and ineffective system of date labels
n Selling or donating near-expiration or expired is one of the most straightforward ways we can address the
products; and rising rates of wasted food, while providing a service to
consumers by improving both food safety outcomes and
n Educating consumers on the meaning of date labels economic impacts.
and on safe food handling.
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Introduction
A
merica is fixated on food—we have television channels devoted to it,
competitions revolving around it, and every manner of book, blog, and
newspaper column revering it. For a country so obsessed with food, it
is alarming how much of it Americans throw away, despite the serious ethical,
environmental, and financial implications of this waste. An estimated 40 percent of
food in the United States goes uneaten,1 and according to even the most conservative
estimates, Americans waste 160 billion pounds of food each year.2 The rate of food loss
in the United States far exceeds that of much of the rest of the world, with the average
American consumer wasting 10 times as much as food as the average consumer
in Southeast Asia.3 One key contributor to wasting food is confusion around food
expiration dates.
Despite the high rate of food waste, almost 15 percent of This policy brief explores the relationship between food
U.S. households were food insecure at some point in 2011.4 waste, food safety, and the regulatory systems that govern,
It has been estimated that redistributing 30 percent of all the or fail to govern, food date labeling practices in the United
food lost in the United States could feed every food insecure States. It will describe how the contemporary date labeling
American their total diet.5 regime creates confusion among consumers, obstacles for
Wasted food has serious environmental consequences as food service providers, and inefficiencies in the food industry,
well.6 When food is wasted, all of the resources used to produce, ultimately contributing to and exacerbating the waste of
store, transport, and handle that food—including arable land, edible food in this country.
labor, energy, water, chemicals, and oil—are also wasted.7 A The brief will begin by tracing the history of food date
study by McKinsey & Company projected that roughly 100 labeling in the United States and then proceed to analyze
million acres of cropland could be saved if developed countries the current labeling landscape at the federal, state, local, and
reduced consumer food waste by 30 percent.8 It is estimated industry levels. Drawing on the results of a comprehensive
that approximately 25 percent of America’s freshwater use goes literature review, a 50-state study of current date labeling
into the production of wasted food.9 regulations, and data from interviews with experts in
Compounding these environmental and ethical harms government, industry, and food science, this paper will
are the financial losses incurred by American families when outline key problems with the contemporary date labeling
enough food to fill the Rose Bowl is wasted each day in the regime: its disorienting effects on consumers, its failure
United States.10 At the consumer level, according to one to convey important food safety information (despite the
calculation, food waste costs the average American family of appearance of doing so), its negative economic impacts across
four $1365-2275 per year.11 the food sector, and its hindrance of food recovery initiatives.
Those studying the problem of food waste in the United All of these factors lead directly to food waste in American
States and abroad have identified confusion over food date homes and across the supply chain, throughout production,
labeling as a major contributing factor at both the industry distribution, retail, food service, and home consumption.
and the consumer level.12 Research from the United Kingdom Based on this analysis, the brief will conclude by outlining
supports a connection between the misinterpretation of date recommendations for how different stakeholders can take
labels and wasted food,13 and a study conducted by the Bio action to improve current practices and foster policy changes
Intelligence Service for the European Commission identified to begin to remedy the negative impacts of date labeling on
the standardization of food date labeling as an important food waste in the United States.
policy intervention to reduce food waste.14
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Chapter 1: History of U.S. Date Labeling:
A Piecemeal response to Consumer Interest
in Date Labels
T
he urbanization of the United States divorced most consumers from the
creation of their food—these consumers began purchasing the bulk of their
food, rather than growing it themselves, and had little personal knowledge
concerning the freshness and shelf life of their purchases.15 As Americans began to buy
more processed or packaged foods, this knowledge deficit forced consumers to rely
on assurances from retailers that the foods they were purchasing were fresh, yet these
assurances often proved insufficient to fully dispel consumer fears.16
By the 1970’s, consumer concern surrounding the food.”26 Critically, even in the 1970s supporters of open dating
freshness of food crystallized,17 and diverse stakeholders recognized that assuring the microbiological safety of food
within the food industry, government, and the public could not be achieved using date labels.27 Indeed, the OTA
interest sector began to seriously explore what is known report flatly stated that “there is little or no benefit derived from
as open dating in response to consumer unease. Open open dating in terms of improved microbiological safety.”28 An
dating uses a date label that includes a month, day, and analysis of the intersection between date labels and food safety
year in a format clearly evident to the consumer.18 Out of a will be discussed at length in the sections below.
nationwide survey of 250,000 shoppers published in 1975, 89 Food labeling received the concerted attention of Congress
percent of respondents favored this kind of dating system.19 during this time period, yet legislation on date labeling
According to another survey, 95 percent of respondents ultimately was not passed.29 Congressional action could have
listed open dating as the “most useful” consumer service regulated date labels across the country in a predictable,
for addressing product freshness concerns.20 “Open” dating empirically-grounded way and would have standardized
differed from the long-established industry practice of industry practices and preempted widespread variation in
“closed” dating, in which manufacturers and retailers used state regulations. Members of Congress recognized these
symbols or numerical codes that were undecipherable to benefits, and during the 1970s and 1980s introduced several
consumers to manage their inventory and stock rotation,21 legislative proposals to institute a uniform open code dating
without any intention of relaying that information directly system on a nationwide scale, mostly via amendments to the
to consumers.22 Throughout the 1970s, many supermarkets federal Food, Drug, and Cosmetic Act.30 At least 10 bills were
voluntarily adopted open dating systems in response to introduced by the 93rd Congress (1973-1975) alone.31 The
mounting consumer interest.23 1975 GAO report encouraged Congress to adopt one of these
Government actors also began to react to rising consumer proposed amendments.32 The Food and Drug Administration
demand for more objective, accessible indicators of product (FDA) also welcomed the potential for an explicit statutory
freshness and quality during this period. By 1973, 10 state mandate over date labeling, even while maintaining that
governments had adopted laws or regulations mandating it already had authority to regulate date labeling under its
open dating for certain classes of food products.24 The existing powers to control adulteration and misbranding.33
federal government also began increasing its engagement However, none of the federal legislative efforts gained
with the issue of date labeling by supporting research on enough momentum to pass into law and create a uniform,
this topic. In 1975, the General Accounting Office (now nationwide system.34
the Government Accountability Office or GAO) issued a A variety of stakeholders shaped the debate about open
report to Congress focusing on “problems with stale or dating legislation. In addition to the role consumers played
spoiled foods” and advocating a uniform date labeling in demanding more information about their products,
system to address consumer concerns.25 In 1979, the Office various food industry actors also played a role. At first,
of Technology Assessment (OTA), which existed as an office supermarket chains opposed such regulation because
of the U.S. Congress from 1972 to 1995, was assisted by a they believed that “open dating would add to the price of
task force of consumer representatives, retailers, processors, the food, since shoppers would pick over the packages
wholesalers, scientific experts, and government officials in on the supermarket shelves, selecting only the newest,”35
publishing a comprehensive report for the Senate on open causing increased losses of outdated, but edible food,
dating to address “[consumer] concern over the freshness of and thus forcing supermarkets to raise prices in order to
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account for the discarded products.36 However, after this GAO concluded its discussion of open code dating in 1975
initial opposition, supermarkets began to use open dates by warning that failure to implement a national system
voluntarily in response to consumer demand, and even would “add to confusion, because as open dating is used on
advertised the new practice as a promotional strategy to more products, it would continue letting each manufacturer,
attract customers.37 Then, when Congress tried to pass retailer, or State choose its own dating system.”47 Nevertheless,
legislation that would regulate open dating, spokespersons no federal legislation has been passed for more than 40 years
from the National Association of Food Chains argued before and this lack of uniformity persists today, leading to wasteful
Congress that the industry was already voluntarily spending food practices within the American food system.
millions of dollars on food labeling and that the additional After a more than two-decade lapse in federal
federal requirements would simply impose higher costs and consideration of these issues, the next move towards a
“deter [members of the food chains] from adopting further federal date labeling requirement occurred in the late 1990s.
voluntary, progressive programs in the future.”38 In 1999, Congressman Frank Pallone (D-NJ) introduced the
Policymakers were also discouraged from coming up National Uniform Food Safety Labeling Act, which would
with a standard federal model because of the difficulties have required food to bear a date after which the food should
of trying to harmonize the “differences in views on type of no longer be sold “because of diminution of quality, nutrient
date, explanation of date, and foods covered.”39 Further, food availability, or safety,” preceded by the words “use by.”48
lawyers—even those advocating for a uniform date labeling The bill was stalled at the House Energy and Commerce
system—questioned whether Congress was “willing to pass a Committee and did not pass.
strong preemption provision” that would invalidate all state Similarly, in 1999, Congresswoman Nita Lowey (D-
laws, and thus successfully achieve a uniform national date NY) introduced the Food Freshness Disclosure Act and
labeling regime consistently applied in all states.40 reintroduced similar bills in 2001, 2003, 2005, 2007, and
Due to the lack of success of open dating legislation, the 2009.49 All the bills were referred to the House Energy and
1970s saw the uneven and piecemeal creation of an American Commerce Committee, but none passed out of committee.
>>>>>
date labeling regime, as state governments and industry The bills proposed to amend the Food, Drug, and Cosmetic
actors responded to consumers’ interest in fresh, unspoiled Act by adding the requirement of applying uniform freshness
food in a range of ways, but with no unifying strategy at the dates on food. Uniformity would be achieved by requiring
federal level.41 The resulting inconsistencies across state and that all freshness dates be preceded by the phrase “best
local laws quickly began to create consumer confusion42 and if used by.”50 Foods identified under 21 C.F.R. § 101.9(j) as
industry distress which did not go unnoticed, even by early
43
exempt from the nutritional labeling requirements of the
observers. Food lawyers recognized that the proliferation of Nutritional Labeling and Education Act (including food
inconsistent state laws could affect interstate commerce, products served at restaurants or schools, raw fruits and
and hinted at the idea that it could inflate the price of food, vegetables, and certain ready-to-eat foods, such as foods sold
reiterating the initial concern raised by supermarket chains at bakeries) would also be exempt from this legislation.51 The
that open labeling would lead to food waste and higher food bill would require the “manufacturer, packer, or distributor
prices.44 For example, costs would go up if food companies of the food” to select the freshness date based on tests that
needed to use separate packaging lines for products entering demonstrate that when consumed, the nutrient quality of the
each jurisdiction in order to comply with divergent state laws.45 food would still be the same as indicated by the nutrition facts
Streamlining open dating laws across the nation, so that panel.53 If passed into law, this legislation would be a positive
the food industry could adapt to a single legal regime instead step towards achieving a uniform federal date labeling system,
of trying to comply with the proliferation of inconsistent but it could be strengthened in several ways, as detailed by the
state laws, provided then and continues to provide a strong recommendations included in this report. For example, the
1940 2005 2006 2007 2008
rationale for Congress to pass legislation that can improve
2009 2010 2011
new regulation could require affixing a safety-based date with a
productivity and efficiency in the food industry. This would different standardized term such as “safe if used by” on products
also ensure that consumers are provided consistent and that are empirically proven to cause food safety risks rather than
coherent messages from the dates they are seeing.46 The requiring a “best if used by” date on all food products.
>
-1940
>
1940’s+
>
1950-1970
>
1970’s
>
1973-1975
>
1970’s- PRESENT
Many Americans farm Americans begin to Americans begin to buy Forced to trust manufacturers Congress considered States develop own
or are near their food move off farms. more processed and and grocery stores to supply action. At least 10 federal laws, leading to a
source and know how Slowly lose direct packaged foods, and most them with fresh food, bills introduced in patchwork of rules
fresh their food is. connection to their food is purchased from consumers began demanding 1973-75, but none pass. different in each
food source. grocery stores. Consumers verification that food is in fact of the 50 states.
lose the ability to know how fresh, citing open dating as the
fresh their food is. best method to achieve this.
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CHAPTER 2: The Current Regulatory Regime
T
o understand how the food date labeling system contributes to America’s
food waste problem, it is essential to review the different legislative and
regulatory systems that currently govern date labeling. As discussed above,
despite occasional federal interest, no legislation has been passed, and thus federal law
generally does not require or regulate the use of date labels.54 This lack of coordinated
action at the federal level increases the complexity of the food labeling regime by
causing a regulatory void that states and localities have attempted to fill in various
ways, resulting in a tremendously varied set of state and local laws regarding the
use of date labels. Industry has also attempted to provide direction, with some food
trade associations creating voluntary guidance on date labeling practices for specific
commodities that don’t necessarily help to improve public health.55 Because none of
these approaches are comprehensive, individual manufacturers and retailers are often
left to decide how date labels are actually implemented.
The lack of formal definitions or standardization across

date labeling policies and practices is a problem because it
gives unreliable signals to consumers. Such inconsistency
exists on multiple levels, including whether manufacturers
affix a date label in the first place, how they choose which
label category to apply, internal inconsistency within each
label category due to the lack of formal legal definitions, and
variability surrounding how the date used on a product is
determined. The result is that consumers cannot rely on the
dates on food to consistently have the same meaning.
This section analyzes the ways in which these regulatory
and industry forces operate and interact with each other.
Ironically, despite the original intention of increasing
consumer knowledge about their food, date labeling has
become a largely incoherent signaling device for consumers.
Instead of offering the type of clear and unambiguous
information that consumers seek, date labels can and do
confuse and mislead them.
Federal Law
The scope of federal laws governing food labeling is broad,
but does not currently address date labeling with any
specificity or consistency. Congress clearly has the power
to regulate date labels under the Commerce Clause in the
U.S. Constitution, which gives Congress power to regulate
products sold in interstate commerce.56 Using this power,
Congress has passed a number of federal statutes that govern
labeling of different types of food, with two agencies having
the clearest delegation from Congress of authority over
food labeling: FDA and the U.S. Department of Agriculture
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FDA’s jurisdiction may be considered misbranded if the
food’s label is false or misleading “in any particular.”65 USDA
also has the power to regulate misleading labels for all
products under its purview, and has vested the Food Safety
and Inspection Service (FSIS), an enforcement agency within
USDA, with this authority.66 Under the Acts mentioned
above, USDA has broad authority to promulgate regulations
to protect consumers and ensure that products specifically
regulated under each Act are not misbranded.67 Similar to
the Food, Drug, and Cosmetic Act, under the provisions
of these statutes, labels are considered misbranded if they
are false or misleading “in any particular.”68 As explained
throughout the report, the current date label system leads
to consumer confusion and the waste of edible food. If FDA
and/or USDA agree that date labels are “misleading,” they
could make a case that their existing authority should be
Congress clearly has the power to regulate date labels interpreted to allow them to regulate date labeling as a form
under the Commerce Clause in the U.S. Constitution, of misbranding of food items, without any additional action
which gives Congress power to regulate products sold in on the part of Congress.
interstate commerce. Importantly, these laws also require that FDA and USDA
work together in promulgating consistent regulations. For
example, under both the Poultry Products Inspection Act
(USDA). However, as described in the previous section, and the Federal Meat Inspection Act, USDA must prescribe
because Congress has not successfully passed national date regulations for labels that are consistent with the Food,
labeling legislation to date, no agencies have been given Drug, and Cosmetic Act labeling standards.69 Further, the Egg
explicit authority to regulate in this realm. The statutes and Products Inspection Act provides that the two agencies must
the provisions that are most relevant to food labeling are cooperate with one another in order to decrease the burden
discussed below, with excerpts of language from each federal on interstate commerce in labeling of eggs, because packages
law included in Appendix A. that are not properly labeled could “be sold at lower prices
and compete unfairly with the wholesome, not adulterated,
Agency Authority to Regulate and properly labeled and packaged products.”70 In the past,
Food Labeling and Existing Laws FDA and USDA have issued joint notices about the regulation
Congress has never mandated that FDA or USDA implement of eggs, specifically requesting comments on whether the
a national date labeling regime;57 however, it has delegated varying practices for placing expiration dates on egg products
general authority to both agencies to ensure food safety would violate the misbranding provisions of the Food,
and protect consumers from deceptive or misleading food Drug, and Cosmetic Act and “be misleading to consumers
package information.58 Both FDA and USDA have the power given their expectations.”71 These are some examples of
to regulate food labeling for the foods that fall under their how the two agencies interact with each other and share
respective purviews. FDA has statutory authority to regulate responsibility to ensure consistency across their respective
the safety of all foods with the exception of meat, poultry, regulations. FDA and USDA should similarly work together to
and some fish, under the Food, Drug, and Cosmetic Act of promulgate regulations that address the misleading impact
1938, the Nutritional Labeling and Education Act of 1990, the of date labels by ensuring that date labels are standardized
Fair Packaging and Labeling Act of 1966, the Infant Formula across food products.
Act of 1980, and the Food Safety Modernization Act of 2011.59 Other government agencies also share the role of
On the other hand, USDA has jurisdiction to regulate meat, protecting the interest of consumers from deceptive
poultry, and certain egg products, under the Poultry Products practices. In particular, the Federal Trade Commission
Inspection Act of 1957, the Federal Meat Inspection Act of (FTC) has food labeling authority under the Federal Trade
1906, the Egg Products Inspection Act of 1970, the Perishable Commission Act of 1914 if action is needed to prevent
Agricultural Commodities Act of 1930, and the Agricultural “unfair methods of competition” or “unfair or deceptive
Marketing Act of 1946.60 FDA and USDA share jurisdiction over acts or practices in or affecting commerce.”72 Further, FDA
certain products including eggs61 and fruits and vegetables.62
FDA receives broad food labeling authority under several
of the Acts mentioned above, with its powers to regulate If FDA and/or USDA agree that date labels are
misbranded foods and misleading labels under the Food, “misleading,” they could make a case that their existing
Drug, and Cosmetic Act being the most robust.63 Since one authority should be interpreted to allow them to regulate
of the purposes of the Food, Drug, and Cosmetic Act is to date labeling as a form of misbranding of food items,
protect the interest of consumers, the Act prohibits the without any additional action on the part of Congress.
“adulteration or misbranding of any food.”64 Food under
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and FTC have joint authority under the Fair Packaging and Similar to any coordinated response by FDA and USDA, the
Labeling Act to create regulations “necessary to prevent the shared responsibility already utilized by FDA and FTC could
deception of consumers” for any consumer commodities, be a model for a joint response to date labeling regulation,
including food.73 In response to their shared authority under showcasing a way for agencies to work together to streamline
the Fair Packaging and Labeling Act, FDA and FTC created a date labeling practices across different foods.
memorandum of understanding that gives FDA the authority Figure 1 below includes an illustration of the federal
to regulate food labeling and FTC the authority to regulate agencies and Acts that govern food labeling.
food advertising in order to prevent misleading information
from reaching the consumer.74
Figure 1: Congressional and Agency Authority in the Federal Food Labeling System**
Federal Food, Drug

& Cosmetic Act*
Nutritional Labeling
& Education Act
Food and Drug

Infant Formula Act*
Administration
Food Safety
Modernization Act
Fair Packaging and

Labeling Act*
U.S. Congress Federal Trade Federal Trade

Commission Commission Act
Egg Products
Inspection Act*
Perishable Agricultural
Commodities Act*
U.S. Department of Federal Meat

Agriculture Inspection Act*
Poultry Products
Inspection Act*
Agrictultural
Marketing Act
* Acts which give authority pertaining to date labeling on foods.
** Note that FDA may have additional enforcement authority shared with other agencies with regard to food safety, but this chart focuses on primary authority over labeling for certain food types.
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The Current Federal Labeling Regime —How FDA and totally optional.
USDA Use Their Legal Authority
While FDA could interpret its existing statutory authority
Federal Voluntary Guidance
to enable it to regulate date labeling practices for the foods
Instead of actively regulating date labeling practices in a
under its purview,75 the agency has not done so. According
uniform manner, the federal government has provided
to FDA, it “does not require food firms to place ‘expired
mostly voluntary guidance on this subject. One example
by’, ‘use by’ or ‘best before’ dates on food products”;
of voluntary guidance is the “Uniform Open Dating
instead, “this information is entirely at the discretion of
Regulation,”88 a product of the National Institute of Standards
the manufacturer.”76 The only exception is infant formula,
and Technology (NIST), a research and advisory body
which is subject to explicit FDA date labeling requirements.77
within the U.S. Department of Commerce, in partnership
In response to scandals resulting from recalls of infant
with the National Conference on Weights and Measures
formula products that were causing illnesses among children
(NCWM), a not-for-profit corporation committed to
because the products lacked sufficient nutrients,78 and due
creating uniform national standards for various units of
to findings that industry had too much discretion to decide
measurement.89 Recognizing that the “lack of uniformity
the appropriate nutritional content of these products,79
between jurisdictions could impede the orderly flow of
Congress passed the Infant Formula Act of 1980, mandating
commerce,”90 the NCWM has promulgated model regulations
that FDA set uniform standards for the nutritional content
on open dating which they hope will be adopted by all state
of these products.80 However, unlike the arguments around
and local jurisdictions.91 NCWM’s model regulations, which
freshness discussed in the History Section, the Infant
are published in NIST Handbook 130,92 set “sell by” as the
Formula Act focused only on the nutritional content of
label date that jurisdictions should require for pre-packaged
infant formula products. Under this Act, FDA established
perishable foods and “best if used by” as the date that should
a range of regulations impacting infant formula, including
be required for semi-perishable or long-shelf-life foods.93
a requirement that its labels include “use by” dates.81 The
The model regulations allow all foods to be sold after their
regulations mandate that determinations used to assign such
label dates, provided that they are of good quality and that
dates to infant formula must be based on tests that prove
perishable foods are clearly marked as being past-date.94 NIST
the concentration of nutrients is adequate for the health of
Handbook 130 also includes guidance for properly calculating
children up to the marked date.82
the label date95 and for expressing the date on packaging.96
When compared to FDA, USDA more explicitly addresses
Thus far, according to the 2013 edition of NIST
date labeling for food products under its authority. With a few
Handbook 130, five states (Arkansas, Connecticut, Nevada,
exceptions, such as requiring an open or coded “pack date”
Oklahoma, and West Virginia) have regulations in place that
for poultry products83 and a lot number or “pack date” for egg
automatically adopt the most recent NCWM Uniform Open
products certified by USDA,84 USDA also does not generally
Dating Regulation published in NIST Handbook 130.97 Three
require date labels on regulated products.85 However, the
more states, (Michigan, South Dakota, and Washington)
agency does have technical requirements addressing how
and the U.S. Virgin Islands have adopted an earlier version
dates should be displayed on USDA-regulated food products
of NIST Handbook 130 in whole or in part.98 In sum, while
if they are employed voluntarily or according to state law.
federal guidance on the topic of date labels does exist,
Under these rules, a calendar date “may” be applied to
only a minority of states have implemented this voluntary
USDA-regulated products so long as it includes a day and
guidance. Even though widespread adoption of the most
a month, and possibly a year in the case of frozen or shelf-
current edition of the guidance would create uniformity and
stable products.86 USDA also requires calendar dates to
standardization across all states that adopt its open dating
be preceded by “a phrase explaining the meaning of such
provisions, the guidance in NIST Handbook 130 has flaws.
date, in terms of ‘packing’ date, ‘sell by’ date, or ‘use before’
For example, as discussed in later sections, utilizing “sell by”
date,” and notes that such dates can be implemented “with
dates increases confusion and food waste, and thus these
or without a further qualifying phrase, e.g., ‘For Maximum
dates are not as effective at communicating their significance
Freshness’ or ‘For Best Quality,’ and such phrases shall be
to consumers. Suggestions on how date labeling guidance can
approved by the Administrator [pursuant to procedures
be strengthened to effectively decrease consumer confusion,
outlined in 9 C.F.R. § 317.4].”87 This latter rule is arguably the
improve food safety, and reduce food waste will be discussed
most robust federal regulation that exists, but it is limited
below in the Recommendations section of the report.
in three respects: (1) it applies only to USDA-regulated
Another example of federal voluntary guidance is the FDA
foods (poultry, meat, certain egg products); (2) the three
Food Code.99 The FDA Food Code is a reference document
explanatory phrases that are allowed (“packing,” “sell by,”
issued by FDA that provides model regulations for state
and “use before”) are undefined by the regulation and are
allowed to be used interchangeably, which highlights their
lack of meaning and inability to communicate significance In sum, while federal guidance on the topic of date labels
to consumers; and (3) the rule makes the use of “further does exist, only a minority of states have implemented
qualifying phrases,” which could help correct ambiguity, this voluntary guidance.
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and local governments on food safety laws.100 Like NIST term “expiration date,” (now defined as being “synonymous
Handbook 130, adoption of the code is voluntary. However, with Pull Date, Best-By Date, Best Before Date, Use-By
many states have chosen to adopt it because the FDA Food Date, and Sell-By Date,” and meaning “the last date on
Code reflects the expertise of dozens of food safety experts. which the following FOOD products can be sold at retail or
Importantly, the Code itself is not law; it only becomes wholesale”)112 and preventing sale after the expiration date
binding when states adopt it by statute or regulation, and of prepackaged sandwiches, eggs, infant formula, shucked
states typically add their own modifications. A new version of oysters, milk, and potentially hazardous food labeled as
the FDA Food Code was published every two years until 2001 “keep refrigerated.”113
and is now published every four years, with the most recent This section explores some of the patterns across state date
version published in 2009.101 label regulations that emerged from our 50-state research; it
The FDA Food Code addresses date labeling requirements also highlights the extreme variations among these regulations
in three different areas: shellfish;102 refrigerated, ready- to illuminate how our current food labeling system creates
to-eat potentially hazardous food;103 and reduced oxygen confusion for consumers and does not necessarily improve
packaging.104 For example, for shellfish, the FDA Food Code food safety. Although the most defining feature of the state-
suggests a date labeling requirement for shellfish105 that has level regulation of date labels is its sheer variability,114 there are
been adopted by many states. For refrigerated, ready-to-eat several discernible patterns among the regulations. States can
potentially hazardous foods “prepared and held in a food be roughly grouped into four categories:
establishment for more than 24 hours,” the FDA Food Code 1. Those that regulate the presence of date labels on certain
requires that they “be clearly marked to indicate the date or foods but do not regulate sales after those dates;
day by which the food shall be consumed on the premises,
sold, or discarded based on [specified] temperature and time 2. Those that do not regulate the presence of date labels but
combinations.”106 The FDA Food Code does provide some broadly regulate sales after such dates if date labels are
guidance, but it only applies date labeling language to a voluntarily applied;
limited number of food items.107 As mentioned above, states 3. Those that regulate both the presence of date labels and,
adopt language of the FDA Food Code in their own legislation broadly, the sale of products after those dates; and
or regulations; for example 13 states have adopted almost the
4. Those that do not require or regulate date labels at all.
exact same language as the shellfish date labeling provision
in the FDA Food Code.108 According to our 50-state research, 41 states plus the District
of Columbia require date labels on at least some food items,
whereas nine states do not require them on any foods (see
State Law Figure 2, below).115 For example, New York does not require
The Supremacy Clause of the Constitution provides that date labels to be applied to any products, while all six of its
when state and federal laws conflict, the conflicting state law neighboring states—New Jersey, Pennsylvania, Connecticut,
will be invalidated.109 Thus, state statutes are not preempted Massachusetts, Vermont, and Rhode Island—have such
by federal law if they do not directly conflict with existing requirements. Twenty states plus the District of Columbia
federal legislation.110 Because federal regulation of date labels also regulate the sale of food products after some label
is so limited, states consequently have vast discretion to dates, while 30 states have no such restrictions (see Figure
regulate date labels in almost any way they see fit. Certain 3, below). Massachusetts’s regulations are an example of the
states have used that discretion enthusiastically, creating kind of restrictions states can impose on sales after the label
a system of stringent requirements for date labels, while date. In Massachusetts, “food can only be sold past its ‘sell by’
others have not regulated date labels at all. The result is an or ‘best if used by’ date if: (1) it is wholesome and its sensory
inconsistent state regulatory scheme that is not necessarily physical qualities have not significantly diminished; (2) it is
improving public health. One possible reason for such wide segregated from the food products which are not past date;
variation is that depending on the state, date labels fall under and (3) it is clearly marked as being past date.”116 As with this
the purview of different state government departments, example, even when regulations exist around the use of date
including Department of Health, Department of Agriculture, labels, very few states define what the words should mean
Department of Weights and Measures, Department of and virtually none delineate the process for determining the
Commerce, or others.111 dates (see Appendix C).
Furthermore, state law is not static; state legislatures States also differ in the kinds of food they require to bear
are constantly updating and amending the date labeling date labels (see Figure 4, below) as well as the kind of date
requirements. Several states passed new date labeling laws labels that are required. Most states that require date labels or
within the past year. For example, Georgia amended its regulate the sale of past-date products apply their regulations
date labeling rules in 2012 by adding a definition for the to specific foods, such as shellfish, dairy/milk, or eggs. A
handful of states regulate perishable foods more generally.117
Certain states have used that discretion enthusiastically, For example, Maryland requires only that Grade A milk bear a
creating a system of stringent requirements for date “sell by” date118 and does not require a date label on any other
labels, while others have not regulated date labels at all. products; Minnesota, on the other hand, requires “quality
The result is an inconsistent state regulatory scheme that assurance” dates on perishable foods119 and eggs,120 and “sell
is not necessarily improving public health. by” dates on shellfish.121 The most common food product
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Figure 2: States Requiring Date Labels on At Least Some Food Products127
ALL
■ NO REQUIREMENT
■ DATE LABELS REQUIRED
DAIRY INFANT FORMULA
EGGS BAKERY PRODUCTS
SHELLFISH HAZARDOUS FOODS
MEAT PERISHABLES
SANDWICHES
Figure 3: States Regulating Food Sales Past Some Label Dates128, 129
ALL
ALL
■ NO REGULATION
■ PAST-DATE SALES REGULATED
DAIRY INFANT FORMULA
EGGS BAKERY PRODUCTS
SHELLFISH HAZARDOUS FOODS
MEAT PERISHABLES
SANDWICHES
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Figure 4: States Regulating Date Labeling130
POTENTIALLY
STATE PERISHABLE FOODS131 MILK/ DAIRY MEAT/ POULTRY SHELLFISH EGGS OTHER
HAZARDOUS FOODS132
ALABAMA X X
ALASKA X
ARIZONA X
ARKANSAS X
CALIFORNIA X X
COLORADO X
CONNECTICUT X
DELAWARE X
FLORIDA X X
GEORGIA X X X X X
HAWAII X
IDAHO
ILLINOIS X
INDIANA X X
IOWA X
KANSAS X
KENTUCKY X X
LOUISIANA X
MAINE X
MARYLAND X
MASSACHUSETTS X
MICHIGAN X X X
MINNESOTA X X X
MISSISSIPPI X
MISSOURI
MONTANA X
NEBRASKA
NEVADA X X
NEW HAMPSHIRE X X
NEW JERSEY X X
NEW MEXICO X
NEW YORK
NORTH CAROLINA X
NORTH DAKOTA X
OHIO X X
OKLAHOMA X X
OREGON X
PENNSYLVANIA X X
RHODE ISLAND X X
SOUTH CAROLINA X X
SOUTH DAKOTA
TENNESSEE
TEXAS X
UTAH
VERMONT X
VIRGINIA X X
WASHINGTON X
WASHINGTON, D.C. X X X X X X X
WEST VIRGINIA X
WISCONSIN X X
WYOMING X
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that requires date labeling is shellfish, for which such labeling regulations than the state in which they are located,
labeling is specifically regulated in 24 states and the District inconsistency in the regulations could lead to even greater
of Columbia. Further, as previously mentioned, eight states consumer confusion, and could also stand in the way of
have adopted the NCWM Uniform Open Dating Regulation voluntary industry adoption of a more standardized dating
in whole or in part, meaning that those states are more system. Repealing or amending such city ordinances that do
similar to one another in terms of their regulations.122 not improve public health and safety could allow for more
The details of each state’s individual regulations also consistency. For example, New York City used to require
vary dramatically. The following examples only brush the “expiration dates” on milk cartons even though the state of
surface of this variation, but illustrate how widely states have New York imposes no date labeling requirements on any
departed from one another in creating their open dating foods.134 In September 2010, the city repealed its date labeling
regulatory regimes: requirement and fell in line with the state-level approach.135
n In Michigan, packaged perishable foods must include a The city recognized that its own rule for open dates was not
date that may be displayed with or without explanatory necessary to protect public health because if milk is “handled
terms such as “sell by” or “best before,” but if such terms properly,” it will still be safe to consume even after the
are used, only particular phrases may be used.123 expiration date passes.136 The City also noted that New York
State had not reported any “adverse public health effects,
n Rhode Island requires that packaged bakery products poor milk quality or a decrease in milk demand” arising from
contain pull dates.124 not requiring a “sell by” date at the state level.137
n New Hampshire and Georgia are the only states to
explicitly single out pre-wrapped sandwiches for The Role of Industry
regulation.125 The inconsistent regulation of date labels at the federal, state,
n In contrast with many other states, Minnesota and Ohio and local levels means manufacturers and other industry
explicitly preempt local ordinances on food labeling, actors often must decide the form and content of date labels.
reserving all power in this arena to the state.126 Where no regulations exist, as is the case in many states
n New York is one of nine states that have no regulations and for many categories of food, manufacturers are free
regarding food date labeling according to the to decide for themselves which foods will display an open
qualifications assessed in this report. date and which will not. Even when regulations mandate
the presence of date labels on specific foods, they almost
The figures on the preceding pages provide a broad overview never dictate the criteria that industry should use to arrive
of both the patterns and the variations in state-level at the date on the label, thus leaving the decision entirely to
regulation of date labels. A full list of state regulations can be industry discretion.
found in Appendix C. Some food trade organizations have responded to the
lack of uniform regulations by creating their own voluntary
Local Regulations guidance for open date labeling,138 but this guidance is not
Date labeling can also be regulated at the local level. The city always consistent from one organization to the next.139
of Baltimore, for example, prohibits the sale of any perishable Because of the lack of standardization, some retailers
food past its expiration date, whereas the state of Maryland have even taken it upon themselves to create date labeling
does not.133 In cases where cities have more stringent date practices for products sold in their stores. For instance, in
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without a date label now risks being wasted when the date
The inconsistent regulation of date labels at the federal,
labels expire.141
state, and local levels means manufacturers and other
With increased expectations for the food industry to
industry actors often must decide the form and content
address social and environmental concerns,142 improving the
of date labels.
date labeling regime actually provides an opportunity for
the food industry to better serve consumer interests while
2004 Walmart started to require its suppliers to place a “best simultaneously creating positive environmental and social
if used by” date on all food products in an effort to ensure change. Food companies may be able to benefit financially
consumers of the products’ freshness.140 While this policy was by developing creative “cause-related marketing” strategies
created with the best of intentions and helped to standardize designed for consumers interested in reducing food waste and
labels, this change may have in fact led to increased shelf- willing to purchase food items close to the expiration date.143
stable inventory that would have previously been sold
Figure 5: Summary of Voluntary Guidelines and Informal Recommendations by Food Trade Organizations
on Open Date Labeling of Food Products
Association of Food Industries: Informally recommend open dating of olive oil.
Food Marketing Institute: Support a voluntary “sell by” date accompanied by “best if used by” information.
International Dairy-Deli-Bakery Association: Informally recommends manufacturers’ guidelines (sell by/pull by) for foods that are put on display in
the supermarket, such as deli meats.
National Food Processors Association: For refrigerated and frozen foods, indicates that manufacturers are in the most knowledgeable position to
establish the shelf life and consequently the specific date labeling information that is most useful to the consumer. To harmonize date labeling among
food products, supports a month/day/year (MMDDYY) format, either alphanumeric or numeric.
Specialty Coffee Association of America: Encourages members to put a “born-on” date on their products.
Source: EASTERN RESEARCH GRP., INC., CURRENT STATE OF FOOD PRODUCT OPEN DATES IN THE U.S. 1-13 (2003).
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CHAPTER 3: Shortcomings of the Current System
Inconsistent and Unreliable Wording

and Methods of Determination
The lack of binding federal standards, and the resultant state
and local regulatory variability in date labeling rules, has led
to a proliferation of diverse and inconsistent date labeling
practices in the food industry. Open dates can come in a
dizzying variety of forms, none of which are strictly defined
or regulated at the federal level. This haphazard system is not
serving its purpose well.
Though it is impossible to provide actual definitions
as meanings can vary by state and phrases are not legally
defined, the following terms can loosely be interpreted as:
(1) the “production” or “pack” date, which provides the date
on which the food product was manufactured or placed
in its final packaging; (2) the “sell by” date, which provides
information to retailers for stock control leaving a reasonable importantly, how this date will be determined.149 According
amount of shelf life for the consumer after purchase; (3) the to the 2003 report prepared for FDA, a key motivating
“best if used by” date, which typically provides an estimate force behind a manufacturer’s decision to open date is the
of the date after which food will no longer be at its highest protection of the consumer’s experience of a product,150 in
quality; (4) the “use by” date, which also typically is a order to safeguard that product’s reputation.151 Manufacturers
manufacturer’s indication of the “last date recommended for and retailers accomplish this goal by focusing on the
the use of the product while at peak quality”; (5) the “freeze product’s shelf-life—typically conceptualized as “the end
by” date, which is a reminder that quality can be maintained of consumer quality determined by the percentage of
much longer by freezing product; and (6) even the “enjoy by” consumers that are displeased by the product.”152
date used by some manufacturers, and not clearly defined Manufacturers and retailers are ultimately free to define
in a way that is useful to consumers. It is important to note shelf-life according to their own market standards, “with
that the meaning of these terms may vary from product to some accepting a predetermined degree of change” in
product and among manufacturers of the same products product quality over time, “and others finding that no
because there is no industry consensus surrounding which change is acceptable.”153 Those manufacturers and retailers
date label prefix should be applied to different categories of opposed to any quality change in their product generally
food products.144 choose to set their label dates earlier to ensure that food
In addition to discretion over which label to use, industry is consumed only at its peak freshness, in order to protect
actors vary in their decisions about when to include a label their brand integrity. Some manufacturers use lab tests to
on a product at all. In a 2003 report prepared for the FDA, determine the shelf life, others use literature values, and yet
six manufacturers were interviewed and asked to describe others use product turnover rates or consumer complaint
their processes for deciding when to include an open date frequency.154 Ultimately, there is a high degree of variability,
on one of their products, and their answers varied widely.145 arbitrariness, and imprecision in the date labeling process.
Most manufacturers agreed on certain important factors, As explained by one food scientist and former food industry
including the perishability of a product,146 but beyond that official describing one process that uses grades assigned by
there was a wide range of different responses, illustrating the professional tasters:
broad level of discretion left to manufacturers. For instance, If the product was designed, let’s say, to be a 7
some made their decision based on space constraints on when it was fresh, you may choose that at 6.2, it’s
packaging while others considered the decision as part of gotten to the point where [you] don’t want it to be
their marketing strategy.147 Industry guidelines, likewise, do on the market anymore . . . . If it’s 6.0, would most
not typically influence manufacturers’ decisions to include people still find it reasonably good? Absolutely.
date labels and do not usually identify which shelf stable foods . . . But companies want people to taste their
should bear open dates.148 products as best they can at the optimum,
Manufacturers are left to decide for themselves not only because that’s how they maintain their business
when to use a date label and what label term to use, but, and their market shares.155
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to determine which of those two terms to use, leading to
Thus, while open code dating appears on the surface to inconsistencies in the labeling of similar products, as evidenced
be an objective exercise, consumer preferences and brand by this finding from a United Kingdom industry report:
protection color the way in which most of these dates are . . . 75 percent of yogurt lines were marked
determined. In most cases, consumers have no way of with a “use by” date and 25 percent with a
knowing how a “sell by” or “use by” date has been defined “best before” date. In conversations with retail
or calculated, and to reiterate from above, the method of food technologists, it was explained that some
calculation may vary widely “by product type, manufacturer, products like yogurts, fruit juices and hard
and geography.”156 cheeses do not necessarily constitute food safety
It is reasonable that manufacturers want to protect risks but simply spoil and therefore may not
their brands’ reputations. Still, here may be a place for need to have a “use by” date applied at all.167
more objective and empirically-grounded methods for
determining quality-based dates. One such method that Further, industry actors are often more likely to include “use
could be applied for some products is the use of empirical by” dates (defined as safety dates) on products that would
shelf-life testing.157 A product’s “shelf-life” can be determined merit a “best before” date (defined as quality date), causing
by testing and monitoring the product over its actual shelf- further unnecessary waste because the United Kingdom
life, which can take several years for shelf-stable products.158 bans the sale of food products after the “use by” date.168
Alternatively, manufacturers can employ accelerated shelf- In 2011, in response to the persistently high rates of food
life testing, a practice involving the study and storage of food waste, the U.K. Department for Environment, Food and
products under test abuse conditions.159 However, at present, Rural Affairs (DEFRA) issued “Guidance on the application
the use of shelf-life testing is almost entirely optional.160 For of date labels to food” to help industry comply with the E.U.
those manufacturers that lack the requisite time, money, Food Labeling Directive using standardized methods.169
expertise, or initiative to conduct such testing, open dates The DEFRA Guidance provides a decision tree for industry
end up being “no more than very good guesses or industry actors that explains when to use which of the two mandatory
practice.”161 The 2003 report prepared for the FDA noted that dates, in order to try to streamline the date labeling used on
creating a mandatory national open dating system, which similar products.170 The Guidance also suggests that retailers
would standardize date labeling practices across the nation, should make “display until” and “sell-by” dates, which were
could also present an opportunity to require manufacturers unregulated and, as in the United States, used primarily as
to implement more rigorous shelf-life testing.162 stock rotation tools, less visible to consumers in order to
The variability of how dates are chosen and expressed reduce unnecessary food waste due to consumer confusion
is also reflected in FDA’s Food Label and Package Survey regarding those particular dates.171
from 2000-2001, which found that just under 55 percent of Back in the United States, the end result of the lack of
food products sold had any kind of date label.163 Out of that standardization of date labels is consumer confusion
55 percent, Figure 6 shows the breakdown of the label types and inability to make informed decisions based on the
that were employed. It is possible that dating practices have
increased since this survey, particularly after WalMart began Thus, while open code dating appears on the surface
requiring its suppliers to utilize “best if used by” dates in 2004.164 to be an objective exercise, consumer preferences and
Even when given a more limited scope of date label brand protection color the way in which most of these
terminology to choose from, the issue of food waste persists. dates are determined. In most cases, consumers have
For example, in the United Kingdom, manufacturers no way of knowing how a “sell by” or “use by” date has
are bound under Directive 2000/13/EC of the European been defined or calculated, and to reiterate from above,
Parliament and of the Council (E.U. Food Labeling Directive) the method of calculation may vary widely “by product
to include either a quality-based “best before” date or a safety- type, manufacturer, and geography.”
based “use by” date.166 However, it remains up to the industry
Figure 6: Distribution of Label Date Types165
Date Stamped* 8.5

Expiration 0.8
“Use By” 31.2
“Sell By” 14.1
0% 5% 10% 15% 20% 25% 30% 35%
* “Date stamped” refers to products stamped with a date, but without any accompanying words.
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information contained in date labels, which ultimately
leads to food waste. Because consumers cannot understand
what factors led to the selection and setting of label dates,
often they mistakenly assume that these dates are tied to
food safety,172 whereas in reality their true function is to
convey information about freshness and quality grounded
in the preferences of consumers themselves and the
particular brand protection practices of manufacturers.
This misunderstanding also creates the opportunity for
an unscrupulous manufacturer to maximize profits at the
expense of consumers’ economic interests. The fact that
consumers and stores throw away products unnecessarily
can lead to increased profits for manufacturers if consumers
are purchasing more products and doing so more often.
According to at least one supply chain expert, some
manufacturers may artificially shorten stated shelf lives for
marketing reasons.173 More empirical research on this topic
would be helpful. The current system provides few checks to
prevent manufacturers from engaging in such a practice.
Consumer Confusion and

Misinterpretation of Link to Food Safety
The current food dating system leads to consumer confusion National Advisory Committee on Microbiological Criteria for
and misinterpretation in two fundamental ways. On one Foods (NACMCF) and several federal agencies181 highlighted
hand, evidence suggests that consumer overreliance on that “54% of consumers believed that eating food past its sell
label dates results in food being wasted because of safety by/use by date constituted a health risk.”182 Other studies
concerns that are not founded on actual risks. At the same found that a majority of respondents believe either that food
time, such overreliance can also cause consumers to ignore is no longer safe to be sold183 or that it is no longer safe to be
more relevant risk factors affecting food safety, including the consumed after its open label date.184 Individuals from all age
time and temperature control, as discussed further below. and income groups are confused about the current system of
Label dates thus create a false (and potentially dangerous) date labels.185
sense of security for consumers who uncritically consume In fact, the current date labeling system does not address
foods before their marked expiration date.174 Thus, neither safety, nor was that ever its main impetus. As referenced
the public’s health nor resource conservation are well-served previously, the OTA’s landmark report on open code dating
by the current date labeling system. from 1979 concluded:
There is little or no benefit derived from open
Mistaken Belief That Past-Date dating in terms of improved microbiological safety
Food Is Unsafe to Consume of foods. For foods in general, microbiological
Although most date labels are intended as indicators of safety hazards are a result of processing failures,
freshness and quality,175 many consumers mistakenly believe contamination after processing, and abuses in
that they are indicators of safety.176 A 2007 survey of U.S. storage and handling. These factors are usually
adults funded by USDA’s National Integrated Food Safety independent of the age of the product and have
Initiative of the Cooperative State Research, Education, little relationship to an open date.186
and Extension Service (CREES) found that many of the USDA affirms that “even if the date expires during home
respondents could not identify the general meanings of storage, a product should be safe, wholesome and of good
different open dates, with fewer than half (44 percent) quality if handled properly and kept at 40°F or below.”187
correctly describing the meaning of the “sell by” date and Echoing this assertion, the FDA’s Center for Food Safety and
only 18 percent correctly indicating understanding of the Applied Nutrition (CFSAN) has noted that most foods, when
“use by” date.177 In addition to this substantial confusion, 25 kept in optimal storage conditions, are safe to eat and of
percent had the misconception that “sell by” date identifies acceptable quality for periods of time past the label date.188
the last day on which a product can be consumed,178 rather Other studies also show there is no direct correlation
than an inventory-control date that simply recommends between food safety and date labels. In the United Kingdom,
how long a product should be displayed on the shelf vis-à-vis
newer products.179 A separate survey by the FMI found that
91 percent of consumers reported that at least occasionally USDA affirms that “even if the date expires during home
they had discarded food past its “sell by” date out of concern storage, a product should be safe, wholesome and of good
for the product’s safety, with 25 percent reporting that quality if handled properly and kept at 40°F or below.”
they always did so.180 Moreover, a report sponsored by the
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representatives from retail and manufacturing compiled a how long and at what temperatures the food was stored.192
report with a wide-ranging review of date labels, consumer Consumers often do not understand the relationship of time
safety, and food waste. The report, published in 2011, and temperature to safety; many people do not realize that
found no direct evidence linking foodborne illness in the the amount of time food spends in the danger zone (40o to
United Kingdom to consumption of food past its expiration 120o degrees Fahrenheit) is the main criterion they should
date.189 Food safety experts agree that absent time/ use to evaluate food safety, rather than total storage time.193
temperature abuse, when food is allowed to remain too When food is left at unsafe temperatures for too long or is
long at temperatures favorable to the growth of foodborne otherwise compromised, an open date becomes essentially
microorganisms, many food products will be safe past meaningless, but consumers may trust the label date and
their date labels, although there are exceptions for certain use the product anyway.194 The 1979 OTA report specifically
classes of “ready-to-eat” perishable foods and foods to be expressed this concern, stating that date labels might
consumed by certain susceptible populations,190 both of disserve consumers by giving them a false sense of security.195
which are discussed below. Quality-based date labels are not A 2011 government report out of the United Kingdom also
relevant food safety indicators because a food will generally recognized the possibility that the “proliferation of ‘use by’
“deteriorate in quality to the point that it would not be dated products increases risk for consumers by diluting key
palatable to eat before there [is] an increase in the level of food safety messages.”196 This worry about false confidence
food safety risk.”191 Quality-based label dates are generally is borne out in a study reporting that more than half of all
set far before this spoilage point, meaning that there is a American adults think the “use by” date is an indicator of
significant amount of time past the label date during which microbiological safety.197
the food is still safe to eat.
The incredible variation between state and local
A Different Case: Listeria Monocytogenes and
regulations regarding date labeling and the sale of food after
Refrigerated Ready-to-Eat Foods
the label date further supports the conclusion that the use of
There is one area of food safety concern that does implicate
these dates does not advance public health in a meaningful
date labeling as a potential regulatory solution: the risk of
way. While some states, like Massachusetts, regulate date
Listeria monocytogenes in ready-to-eat-foods. According to
labeling and sale after some date labels aggressively, a
FDA’s Center for Food Safety and Applied Nutrition, Listeria
significant number of states, including New York, leave the
is “a bacterium that occurs widely in both agricultural .
field completely unregulated. Given that the same food
. . and food processing environments.”198 If ingested by
products are no more or less hazardous in different states, it
humans, the bacterium can cause listeriosis, a potentially
appears that at least some states are pursuing date labeling
life-threatening infection.199 For most foodborne pathogens,
policies that lack robust empirical support. If persuasive
“the duration of refrigerated storage is not a major factor in
evidence comes to light showing that there is a proven
foodborne illness.”200 But in the case of food contaminated by
correlation between label dates and food safety, then all
Listeria, the length of refrigerated storage time is a factor,201
jurisdictions should adopt similar regulations. Alternatively,
since this organism can grow and multiply even while under
and more realistically, jurisdictions with more stringent
refrigeration.202 For this reason, the federal government
date labeling requirements should review whether their
identified Listeria as a pathogen for which a safety-based
regulations are actually designed to address food safety risks.
“use by” date label could be a useful preventive tool.203
Further research on the relative rates of foodborne illnesses
in states that have restrictions on sale after date versus those
that do not may be instructive on the level of protection that
those regulations actually provide.
Mistaken Belief that Pre-Date

Food Is Always Safe to Consume
While the mistaken belief that past-date foods are unsafe
leads directly to food waste, overreliance on date labels
may also have a detrimental effect on consumer health
and safety. When consumers put undue faith in date labels,
they may actually ignore more salient determinants of
food safety, putting themselves at risk. Specifically, when
consumers rely on a date label that emphasizes a product’s
estimated lifespan without any accompanying information
about the storage temperature or conditions under which
the food was or should be kept, they are acting without
critical information. A label date, if it is even designed to
communicate safety, could truly only convey meaningful
safety information if it were presented in conjunction with
the time/temperature history of the product, meaning
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However, because Listeria is destroyed upon cooking, this compromised immune systems, and babies in utero.215 It
risk is generally limited to ready-to-eat foods that are not may therefore make more sense to target those populations
heated before consumption.204 Indeed, of the 14 large-scale specifically. For example, Connecticut’s food safety regulations
foodborne listeriosis outbreaks reported to the Centers for allow food service establishments to serve raw or undercooked
Disease Control and Prevention (CDC) between 1973 and items, but make explicit that such exemption does not apply
2000,205 almost all were known or suspected to have involved in the case of “food service establishments serving highly
refrigerated ready-to-eat foods.206 susceptible populations such as immuno-compromised
While Listeria in ready-to-eat-foods is a legitimate problem individuals or older adults in hospitals, nursing homes, or
in the food supply, this concern does not justify, nor is it similar health care facilities . . . and preschool age children in a
addressed by, the current date labeling system. Listeria facility that provides custodial care.” 216 Labels could also carry
concerns in ready-to-eat foods could be more effectively population-specific messaging. Education is important as well,
addressed using targeted, well-tailored interventions that such as when government agencies advise pregnant women
might include a date that explicitly indicates when the food to avoid deli meats and unpasteurized cheeses because of the
is safe to consume, but would also have other information Listeria risk.217
beyond just the date. Such interventions could integrate As laid out in this section, it is possible to address product-
important food safety considerations at all stages of the specific food safety concerns (e.g., for ready-to-eat foods) by
supply chain, like the prevention of time/temperature using clear, targeted interventions, including standardized,
abuse,207 which is not assured by the imposition of date labels effective date labeling,218 without creating unnecessary and
alone. Federally-regulated open dating may be appropriate for unwanted collateral effects across the entire food system.219
discrete categories of foods that pose a unique public health For most foods, including many ready-to-eat foods, the
risk, such as ready-to-eat products. But the use of specialized current date labeling framework does not advance public
regulations applicable only to such high-risk foods would health in any significant way. For the reasons presented
better protect consumers if they allowed for consumers above, food safety considerations should not constitute a
to distinguish between truly pertinent safety labels and primary justification for maintaining present date labeling
generic, quality-based labels. Indeed, recognizing the dangers practices. Instead, specific practices should be tailored to
inherent in ready-to-eat foods, FDA has already promulgated ready-to-eat-foods to help consumers make better food
regulatory guidance focusing on this category in the FDA safety choices with regard to those high-risk foods.
Food Code.208 The Food Code takes a holistic approach to
the processing and handling of ready-to-eat foods along
Consumer Food Waste
the supply chain, and provides specific time/temperature
Consumer confusion surrounding the meaning of date labels
guidelines for the holding and consumption of ready-to-
also contributes to the high rate of waste of edible food. Food
eat foods at the retail level.209 Date labeling requirements
loss has been defined as the “edible amount of food available
constitute one element of this integrated approach210 and
for human consumption but . . . not consumed.”220 Food waste
complement the more important goals of minimizing Listeria
is a subset of food loss, representing the amount of edible food
contamination and time/temperature abuse.211
that goes unconsumed due to human action or inaction.221
It is even possible to imagine finer-grained distinctions
By conservative estimates, U.S. food losses amount to 160
being made within the category of ready-to-eat foods,
billion pounds of food annually.222 This waste has important
allowing for better-tailored and effective date labels.
economic, environmental, and ethical implications.
This is because certain categories of ready-to-eat foods
To start, it is estimated that per capita food loss is $390 per
that have been found to support the growth of Listeria
year, putting the total food loss for a family of four at $1,560
carry a much higher risk than others. When CFSAN
annually.223 One expert in consumer food waste thought that
conducted a quantitative assessment of the relative risk of
figure was too low because it did not capture the estimated 10
23 food categories with a documented history of Listeria
percent of consumer food lost to the garbage disposal.224 With
contamination, only two categories were designated as
that additional portion factored in, food losses could cost the
being at “very high risk” of contamination: “Deli Meats” and
average American family $2,275 annually.225
“Frankfurters, Not Reheated.”212 Categories with a “very low
On the environmental front, studies show that more than
risk” included “Hard Cheese,” “Ice Cream and Other Frozen
25 percent of all the fresh water used in the United States is
Dairy Products,” and “Processed Cheese.”213 While foods
squandered on the production of wasted food.226 The EPA
posing a very high risk necessitated “immediate attention
reports that over 34 million metric tons of food scraps were
in relation to the national goal for reducing the incidence of
generated in 2010,227 almost all of which went into the waste
foodborne illness,” very low risk foods were deemed “highly
stream, making food the greatest source of waste headed
unlikely to be a significant source of foodborne listeriosis”
to landfills in the United States at 21 percent of all landfill
absent “a gross error in their manufacture.”214 Thus, even
input.228 The most alarming statistic is that food loss in
according to FDA’s own research, Listeria-related food safety
the United States has been on the rise for the past several
risks do not extend to every product type within the ready-to-
decades, with per capita food loss increasing by 50 percent
eat category.
since 1974.229
Finally, but no less importantly, it should be noted
Recent studies conducted in the United Kingdom have
that serious illness from Listeria occurs almost exclusively
explored the connection between food waste and food
in susceptible populations like the elderly, those with
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date labeling. A report published in 2011 by WRAP, a not- Challenges for Food Recovery Initiatives
for-profit organization that works to reduce food waste and Anti-Hunger Organizations
in the United Kingdom and other European countries, The food waste that is generated by date labeling practices
reported that confusion over date labeling accounts for an can and often is offset by back-end efforts to reclaim, rescue,
estimated 20 percent of avoidable household food waste.230 or repurpose past-date foods in order to prevent them from
Comprehensive research on the connection between date being discarded. One approach to mitigating food waste is
labels and food waste has not yet been conducted in the to divert expired foods to anti-hunger organizations that
United States. can process and distribute these products to food-insecure
As the previous section makes clear, the majority of individuals and families. Safe, wholesome past-date products
American consumers do not understand date labels, with a constitute a significant portion of the food relief that is
significant chunk of them mistakenly believing that eating distributed by food banks and soup kitchens.237 As well,
food past its “sell by” or “use by” date poses a health risk.231 there are a number of new organizations that specialize in
Consumers’ discarding of food on or before the “sell by” date linking anti-hunger initiatives with past-date or otherwise
offers further evidence of food waste that is linked to date unsaleable foods.238
labeling because that date does not in fact indicate the food Another way that retailers can mitigate food waste is
is spoiled. In a 1987 study, 17 percent of weekly household by selling past-date products at lower prices through a
waste was reported discarded because it was “past a pull date, designated “discount” section of the store239 or, alternatively,
an expiration date, or, in some cases, a series of production to external businesses including freestanding expired food
code numbers misinterpreted as a date,” or “because the stores240 or expired food auctions.241 These retail avenues give
consumer believed that the food was too old by some other savvy, price-conscious consumers the option of voluntarily
time standard.”232 Thus, while more research would help to foregoing the quality standards indicated by a date label in
further define the scale of the problem, it is already quite clear exchange for often significant cost savings.
that date labels play a central role in generating food waste Despite these promising initiatives, many of the same
among U.S. consumers. distorting and disorienting effects caused by date labels in
the traditional retail context can also be present in the past-
Economic Losses and Inefficiencies date retail market. Consumer confusion surrounding the
for Manufacturers, Distributors, meaning of date labels and their relationship to food safety
and Retailers severely limits the market for past-date products. Experts
Because of the consumer misperceptions that surround in food recovery242 and food waste243 report that there is
the meaning of date labels, the practice of open dating also widespread confusion amongst anti-hunger program
usually results in a higher rate of unsaleable—and hence administrators over the meaning of various date labels. Food
often discarded—food for retail stores.233 In the United safety officers working with anti-hunger organizations must
States, an industry initiative estimated about $900 million consequently spend considerable time and effort educating
worth of inventory was removed from the supply chain in workers about the date labeling system, and those workers
2001 due to date code expiration and identified the lack must in turn educate clients and end-users when they express
of standardization around date coding as one of the five concerns or uncertainty about the products they are receiving.244
factors driving that loss.234 This food represents a direct Laws in 20 states plus the District of Columbia also
economic loss for retailers, and ultimately could be a cost explicitly regulate the sale (and sometimes even donation)
born by consumers in the price of goods. Aside from the of foods beyond their label date (see Figure 3). Donors
costs of wasted food, inconsistent date labeling regulations may also be concerned about their liability associated with
that are not benefiting public health can also make food food safety, even though they are protected by state and
businesses less efficient. Retail experts have reported federal “Good Samaritan” laws that exist to protect from
that it can be difficult for large-scale food corporations to liability the corporations and individuals who donate food
comply with divergent state regulations.235 Indeed, one of to non-profit organizations.245 Finally, state and local food
the driving motivations for the NCWM when it created the inspectors have been known to frustrate food recovery efforts
Uniform Open Dating Regulation was the fear that variation on the basis of questionable—or, in some cases, clearly
between state regulations on date labels would hamper the mistaken—interpretations of how local health codes and
“orderly flow of commerce” among states.236 With the current food safety laws view past-date foods.246 For example, an
regulations, companies often must use separate packaging inspector may assume that a past-date product cannot be
lines for products entering different jurisdictions in order safe or wholesome, even though date labels alone are not
to comply with these divergent state laws. Further, food reliable indicators of safety or wholesomeness. All of these
packers and manufacturers have an incentive to follow the complications stemming from date labeling practices make
strictest state labeling regulations for all of their products, it more difficult to use food recovery methods to mitigate the
even for products sold in states with no regulations. Because food waste that is caused by those practices.
no states prohibit date labels, this method can be less costly
for companies. However, this means that date labels could
be having the same confusing impacts even in states without
regulations because products in all states wind up with labels
that are not protecting consumers.
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Chapter 4: Recommendations
A
new system for food date labeling in the United States is needed. This system
should have uniform language that clearly communicates to consumers the
meaning of dates as well as other food safety and handling information. The
system should be the same throughout the United States for foods within the same
category of products, and to the extent reasonable, across all classes of food products.
The recommendations proposed here respond directly to offer no useful guidance to consumers once they have
the myriad problems linked to the current date labeling brought foods home, and are often misinterpreted by
legal framework. They are broken into two sections. The consumers as safety dates. Guidance on when to eat
first section proposes changes to date labeling practices in the product may be helpful to consumers, but guidance
order to standardize the labels, reduce consumer confusion, on when to sell it is not. Affixing these dates in a closed
improve consumer food safety, and decrease food waste. date format, per prior industry practice,247 will allow
The second section describes the activities that specific for efficient retail stock rotation without unnecessarily
actors, such as industry players, governmental bodies, and confusing consumers. Those same products could
consumers, should take to spur date label reform and thus then display dates that do provide useful guidance
improve food safety and decrease food waste. to the consumer, such as those described in the next
recommendation.
Standardize and Clarify the Food The British approach is illustrative here. As described
Date Labeling System Across the above, food products in the United Kingdom are
United States required to include “use by” or “best before” date labels
1. Make “Sell By” Dates Invisible to the Consumer. under the E.U. Food Labeling Directive.248 But despite
“Sell by” dates are designed for stock control by retailers, the Directive’s requirements to use only two qualifying
as a business-to-business communication between prefixes before date labels, U.K. law still allowed food
manufacturers and retailers. As described above, they companies the discretion to mark food products with
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n Include “freeze by” dates and freezing information
“display until” or “sell by” dates in order to facilitate
where applicable. Including “freeze by” dates on food
stock control.249 Research indicated that consumers were
products, especially perishable products, could reduce
confused when faced with “sell by” or “display until”
the amount of food wasted by consumers. According
dates, and 29 percent of consumers could not correctly
to USDA FSIS, “once a perishable product is frozen,
identify their meaning.250 To solve this confusion, the
it doesn’t matter if the date expires because foods
DEFRA Guidance mentioned above recommended that
kept frozen continuously are safe indefinitely.”256 For
retailers make “sell by” and “display until” dates less
consumers concerned about being unable to use a
visible to the consumer.251 While the change is too recent
food product before its expiration date, or concerned
to determine its impact, a number of experts in the U.S.
that such a product may deteriorate in quality after the
retail sector have suggested a similar change.252
expiration date, the presence of a complementary “freeze
2. Establish A Reliable, Coherent, and Uniform Consumer- by” label could serve as a reminder to freeze the product
Facing Dating System. instead of discarding it. The best expression for this may
There is little to no benefit from states regulating food be “use or freeze by.”
product dating differently from one another, or from
More generally, it is important to raise consumer
companies independently determining the language
awareness of the benefits of freezing food and the
that will be used on date labels, if this discretion is not in
abundance of different food products that can be
fact leading to any real health or safety benefits. In fact,
successfully frozen. In the United Kingdom, food
a joint industry task force examining this issue in 2007
products that are “suitable for home freezing” are
concluded that “industry and consumers would benefit
marked with a snowflake label.257 American food
from a more common approach to how [open date]
companies or retailers could implement a similar
information is communicated and to how the supply
symbol to communicate this information to consumers
chain uses this information to manage inventory.”253
and provide helpful guidance on how to maintain
The work of various actors, including industry members, the product’s quality when freezing it. Furthermore,
policymakers, food safety experts, consumer behavior education campaigns aiming to reduce food waste
experts, and consumer advocates, is needed to establish should focus on reiterating the benefits of freezing as one
the most effective system of consumer-facing dates. A component of their message.
new system should include the following components:
n Remove or replace quality-based dates on non-
n Establish standard, clear language for both quality- perishable, shelf-stable products. In order to reduce
based and safety-based date labels. Language used food waste, it may be most effective to remove quality-
on food products should more clearly and accurately based dates, such as “best before” on non-perishable,
communicate a date’s meaning. Consumer research shelf-stable foods.
should be used to determine the exact wording that
Even if quality-based dates were removed, information
best communicates these meanings, but the language
on shelf life after opening should still be communicated,
should be standardized, unambiguous, and should clearly
such as “Best within XX days of opening.” As an
delineate between safety-based and quality-based dates.
alternative, it may be desirable to provide consumers
For example, for foods where safety may play a role in
with a “pack date” and a general estimate of the product’s
the date, “safe if used by” more clearly communicates the
shelf-life (for example, “maximum quality XX months after
safety aspect as compared to “use by.” In addition, more
pack date”) on certain products to help consumers make
descriptive, explicit statements should be used. For example,
informed and independent quality-based judgments.
instead of short phrases like “best before” for quality-
based labels, a phrase such as “Peak quality [or freshness] Where there is not a safety concern, such an approach
guaranteed before MMDDYY” would better convey would encourage consumers to make judgments
relevant information.254 If space constraints on packages about freshness and quality by actively investigating
become problematic, standardized symbols or visual cues the food product at issue instead of relying on an
may also be of use to communicate these concepts. industry-provided label. This approach would make
it more likely that food is only disposed of when it has
One additional option would be for government to
actually degraded to a quality level that the individual
require, or industry to voluntarily adopt, boilerplate
consumer finds to be personally unacceptable, and it
disclaimers on any quality-based date labels. For
would circumvent the incentive that manufacturers and
example, manufacturers could include a statement that
retailers have to set date labels too conservatively. In
“This date is an indicator of quality. Product safety has
addition, this practice would place more weight on labels
not been tested or linked with this date,” or a statement
placed on products that raise safety concerns, such as
that “Any dates displayed are not safety dates. They have
ready-to-eat-foods that pose a heightened Listeria risk.
not been evaluated by FDA.” While this may require
more space on packages, similar disclaimers are already
employed by FDA in other regulatory contexts.255
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n Ensure date labels are clearly and predictably located but it could be an important tool for conveying useful
on packages. Consumers should be able to easily locate safety information to consumers while reducing food
date label information on packages. One option would waste. This technology would be particularly beneficial
be the creation of a “safe handling” information box on to use on those foods that pose a high risk to consumer
food products, akin to the “nutrition facts” panel. This health, such as ready-to-eat foods. In addition to the TTI,
safe handling box could include information about other models have been piloted or are in development
the pack date, recommended best quality date or use in the United States and internationally.265 Increased
by date, depending on the type of food, guidance for government funding and research support could help in
freezing, and information about how best to store the the development of truly cost-effective smart labels and
product. thereby decrease food safety concerns for those foods
n Employ more transparent methods for selecting identified as being most risky.
dates. Assuring that date labels reflect the true shelf- Another potential way to convey a product’s
life of products would give consumers who rely on date manufacturing or storage information would be to use
labels the maximum amount of time to consume their Quick Response Codes (“QR Codes”) to convey any
purchases before the date expires. Those who set label such relevant additional information. QR codes allow
dates could be required where practical, to engage in a user to “read” a barcode with their smartphone and
quantitative shelf-life testing to determine a product’s then be transported to a website. This would allow the
label date. There are currently no such requirements at manufacturer to deliver ample information without the
the federal level, except in the case of infant formula.258 restrictions of on-package space constraints and would
An even more robust version of this requirement also provide the manufacturer with an additional touch
would require the testing to be done by some kind of point to the consumer.
independent body, external to the entity setting the
date. Alternatively, manufacturers and retailers could
The Role of Industry, Government,
be required to use shelf-life guidelines for specific foods
and Consumers
that are pre-set by the government or by authorized
Congress, federal administrative agencies, state
private entities.
legislatures, state administrative agencies, the food industry,
3. Increase the Use of Safe Handling Instructions and the non-governmental sector, and consumers all have a role
“Smart Labels.” to play in reducing food waste and reforming the American
As stated above, experts agree that safe handling is the date labeling regime and can start acting now. Solutions
most important factor in keeping food safe. Therefore, targeted at each stakeholder group are included below.
including safe handling instructions on packages or
1. We encourage food industry actors to commit to:
other clear, pertinent food safety indicators can help
n Converting to a closed-date system for sell by
ensure a better consumer experience.
information. Retailers, distributors, and manufacturers
The federal government has already started to alike should convert all “sell by” or “display until” dates
explore the possibility of creating a system of labels to a closed-date system. With a majority of consumers
that independently convey relevant food safety mistakenly believing “sell by” dates indicate the last
information; these labels would likely emphasize the day a food can be safely consumed, converting this
central importance of storage temperature and storage information to a coded format will avert a significant
conditions in improving food safety outcomes.259 amount of premature food disposal. This change can and
For example, raw meat and poultry packages must should happen immediately.
be labeled with “Safe Handling Instructions” that
n Establishing a more standardized, easily
remind consumers about the importance of storage
understandable consumer-facing dating system.
temperature, cross-contamination, thorough cooking,
As time and care will be necessary to establish the
and safe holding.260
most effective system of consumer-facing dates, we
Recognizing the limitations of date labels without encourage businesses to jointly commit to creating
any additional knowledge of a food product’s a more standardized, less confusing system of date
temperature history, several experts have proposed labeling that incorporates the guidelines outlined above.
more sophisticated “smart labels” that use technology Perfecting such a system will take the input of various
to indicate the actual storage history of a product, such parties, and could be done by a multi-stakeholder task
as the duration at each temperature.261 One example of force or working group including industry members,
this is a “Time-Temperature Integrator” (TTI),262 a small policymakers, food safety experts, consumer behavior
tag attached to a food product that changes color as a experts, and consumer advocates.
function of time-temperature history.263 When using
n Selling or donating near-expiration or expired
a TTI, manufacturers could use a label statement like
products. Retailers should create dedicated in-store
“‘Use by MM-DD-YY unless tag turns grey.’”264 A smart
discount shelves for food near or just past its label date
label would be more expensive than a date label alone,
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and, alternatively, sell or donate past-date or soon to In order to ensure consistency across products, FDA
be past-date foods to businesses and liquidators that and USDA should establish a coordinated approach.
specialize in selling past-date products. The benefits Congress has given each agency equal power to regulate
of these practices are threefold: retailers get to recover misbranded food, but in order to improve consumer
some revenue that would otherwise never materialize; understanding of date labels, this power should be used to
consumers save money on perfectly edible food, albeit create standardized date labeling requirements that apply
with the knowledge that their purchases may not be in the same manner to all food products, regardless of
at peak quality; and more food is kept out of the waste which agency has jurisdiction. This will help to ensure that
stream. Moreover, a variety of interventions could be consumers can be educated on the meaning of such labels
used to help food banks and food recovery organizations and thus increase food safety and reduce food waste.
utilize past-date foods more efficiently. These changes Once such a new system of date labeling is developed, it
include disseminating more accurate information about should be accompanied by a strong consumer awareness
the meaning of date labels, as well as enhancing federal campaign to educate the public on the meaning of the
and state Good Samaritan protections. new date labels. Other agencies involved in ensuring
n Educating consumers on the meaning of expiration food safety, such as the Centers for Disease Control and
dates and on safe food handling. Point-of-sale displays, Prevention, can assist in these educational efforts as well.
informational pamphlets, and online resources are In addition (or in the meantime), since most states
all ways that food companies can help to educate adopt some version of the FDA Food Code, FDA should
consumers on how to handle food properly and when strengthen its Food Code guidance, incorporate the
it can safely be consumed. These materials should recommendations in this report, and expand the
distinguish between date labels that measure quality and guidance to cover all food products and increase
those that indicate safety to reduce mistaken reliance consistency across products, instead of limiting it to only
on quality labels for judgments of food safety risk.266 shellfish, refrigerated ready-to-eat foods, and reduced-
Because consumers are still wary about consuming food oxygen packaged foods.
at or near its label date, the viability of past-date food n National Conference Weights and Measures/National
sales, as well as the success of any new standardized date Institute of Standards and Technology: We encourage
label regime, is contingent upon increased consumer the NCWM and NIST to revise the Model Uniform Open
awareness and education. Dating Regulation published in NIST Handbook 130 to
2. We encourage policy change to be undertaken by the disallow open dating of “sell by” information and create
following actors: more specific guidance for open dates, incorporating the
n Congress: The most straightforward way to create a suggestions in this report to ensure the best outcomes
uniform date labeling regime would be for Congress for consumers. Creating a multi-stakeholder task force
to establish a federal law that creates a uniform date to tackle the issue could help address differing points of
labeling framework across all states and all food view. The NCWM standards exist as a model guide that
products. As discussed in the History section, past could be used as a starting point for crafting new federal
congressional efforts aimed to create a mandatory guidelines, once they are updated according to these
federal regime by empowering FDA and USDA to create recommendations. Significant benefits of the NCWM
regulatory requirements. The creation of a similar approach include: (1) limiting the types of permissible
legislative mandate could be pursued today. date labels and (2) setting baseline requirements for the
n FDA, USDA, and other relevant federal agencies: As calculation of label dates.269
described above, under the Food, Drug and Cosmetic n States: In lieu of overarching federal regulation, creating
Act, FDA has both the authority and the responsibility more consistency across state laws would be another
to ensure product labels are not misleading.267 Like way to improve date labeling rules in all states while
FDA, USDA has existing authority to protect consumers creating more nationwide uniformity. We encourage
from misleading information on the products under its states to coordinate in adopting standard regulations. If
purview. Given the confusion and misinterpretation that NIST Handbook 130 on Uniform Open Dating Regulation
persists, FDA and USDA already have sufficient statutory is amended, states could follow that guidance. If not,
power to regulate date labels; if they believe they states should adopt laws that call for companies to make
need additional authority to regulate date labels, they the changes recommended in the previous section. At
should identify any specific gaps. They should then use a minimum, states and localities with particularly strict
such authority to promulgate regulations that protect date labeling regulations should consider repealing those
consumers from the misleading information that results regulations that create barriers to uniformity if they do
from the wide variety of date labeling practices utilized not have health benefits. For example, 20 states restrict
by industry either voluntarily or in response to diverse the sale or distribution of past-date foods and thereby
state regulations.268 make food recovery efforts much more difficult.
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n All levels of government: We encourage all levels of to food safety and the critical importance of keeping
government to conduct public education campaigns refrigerators at temperatures below 40° Fahrenheit is
to educate consumers on the meaning of date labels, key to preserving food safely.272 People under 35 years of
proper food handling, and ways to determine when food age have been identified as a demographic that could
is safe to eat. particularly benefit from more intensive food safety
3. We encourage consumers and consumer-facing agencies education.273
and organizations to act now by: n Learning to tell when food can still be safely consumed.
n Educating themselves and their constituents on the There are a variety of resources to help consumers learn
meaning of date labels. As described above, a majority how to assess the safety of food. These include the FMI’s
of Americans mistakenly believe that date labels are Foodkeeper Guide, which lists generic shelf lives of
indicators of safety rather than indicators of quality.270 common products,274 and resources that indicate visual
Learning what dates actually mean will help consumers red flags for microbial contamination, such as USDA’s
to make better food safety decisions, and will also reduce Kitchen Companion Safe Food Handbook.275 These types
premature disposal of products, saving people money of tools can help consumers reduce their reliance on date
in the process. In particular, consumers should educate labels for food safety judgments and make better food
themselves about “sell by” dates, which are indicators of safety decisions.
stock rotation and not of product quality or safety. We have a significant challenge ahead in order to make a dent
n Educating themselves and their constituents on safe in the 40 percent of food that currently goes uneaten in the
food handling and consumption, including proper United States. There is no reason to wait—improving upon
refrigeration temperatures. Many consumers are the convoluted and ineffective system of date labels is one
not aware that storage temperature is the main factor of the more straightforward ways we can address this issue,
impacting food safety, rather than the amount of time while providing a service to consumers by improving both
that has passed since the product’s production.271 food safety outcomes and economic impacts.
Understanding the time/temperature relationship
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Appendix A: Congressional Delegation of Food
Labeling Authority to Agencies
Food and Drug Administration

Food, Drug and Cosmetic Act. 21 U.S.C. §§ 301 et seq. (2012).
Definition of misleading. 21 U.S.C. § 321(n) (2012).
(n) If an article is alleged to be misbranded because the labeling or advertising is misleading, then in determining whether
the labeling or advertising is misleading there shall be taken into account (among other things) not only representations
made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling
or advertising fails to reveal facts material in the light of such representations or material with respect to consequences which
may result from the use of the article to which the labeling or advertising relates under the conditions of use prescribed in the
labeling or advertising thereof or under such conditions of use as are customary or usual.
Prohibited acts. 21 U.S.C. § 331 (2012).
(b) The following acts and the causing thereof are prohibited . . . The adulteration or misbranding of any food, drug, device,
tobacco product, or cosmetic in interstate commerce. Food “shall be deemed to be misbranded . . . if (1) its labeling is false
or misleading in any particular, or (2) in the case of a food to which section 350 of this title applies, its advertising is false or
misleading in a material respect or its labeling is in violation of section 350(b)(2) of this title.
Definitions and standards for food. 21 U.S.C. § 341 (2012).
Whenever in the judgment of the Secretary such action will promote honesty and fair dealing in the interest of consumers,
he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a
reasonable definition and standard of identity, a reasonable standard of quality, or reasonable standards of fill of container.
Misbranded food. 21 U.S.C. § 343 (2012).
A food shall be deemed to be misbranded—(a) False or misleading label. If (1) its labeling is false or misleading in any
particular, or (2) in the case of a food to which section 411 [21 USCS § 350] applies, its advertising is false or misleading in a
material respect or its labeling is in violation of section 411(b)(2) [21 USCS § 350(b)(2)].
Infant Formula Act. 21 U.S.C. § 350a (2012).

(a) Adulteration
An infant formula, including an infant formula powder, shall be deemed to be adulterated if—
(1) such infant formula does not provide nutrients as required by subsection (i) of this section,
(2) such infant formula does not meet the quality factor requirements prescribed by the Secretary under subsection
(b)(1) of this section, or
(3) the processing of such infant formula is not in compliance with the good manufacturing practices and the quality
control procedures prescribed by the Secretary under subsection (b)(2) of this section.
(b) Requirements for quality factors, good manufacturing practices, and retention of records
(1) The Secretary shall by regulation establish requirements for quality factors for infant formulas to the extent
possible consistent with current scientific knowledge, including quality factor requirements for the nutrients required
by subsection (i) of this section.
Labeling requirements, directions for use. 21 C.F.R. § 107.20 (2013).
(c) A “Use by ___” date, the blank to be filled in with the month and year selected by the manufacturer, packer, or distributor
of the infant formula on the basis of tests or other information showing that the infant formula, until that date, under the
conditions of handling, storage, preparation, and use prescribed by label directions, will: (1) when consumed, contain not less
than the quantity of each nutrient, as set forth on its label; and (2) otherwise be of an acceptable quality (e.g., pass through an
ordinary bottle nipple).
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U.S. Department of Agriculture
Poultry Products Inspection Act 21 U.S.C. §§ 451 et seq. (2012).
Definition of misleading. 21 U.S.C. § 453(h) (2012).
(h) The term “misbranded” shall apply to any poultry product under one or more of the following circumstances:
(1) if its labeling is false or misleading in any particular.
Use of trade names; false or misleading marking or labeling; misleading form or size of container. 21 U.S.C. § 457 (2012).
(c) No article subject to this chapter shall be sold or offered for sale by any person in commerce, under any name or other
marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names
and other marking and labeling and containers which are not false or misleading and which are approved by the Secretary are
permitted.
False or misleading labeling or containers. 9 C.F.R. § 381.129 (2013).
(c) A calendar date may be shown on labeling when declared in accordance with the provisions of this paragraph:
(1) The calendar date shall express the month of the year and the day of the month for all products and also the year in
the case of products hermetically sealed in metal or glass containers, dried or frozen products, or any other products
that the Administrator finds should be labeled with the year because the distribution and marketing practices with
respect to such products may cause a label without a year identification to be misleading.
(2) Immediately adjacent to the calendar date shall be a phrase explaining the meaning of such date in terms of
“packing” date, “sell by” date, or “use before” date, with or without a further qualifying phrase, e.g., “For Maximum
Freshness” or “For Best Quality”, and such phrases shall be approved by the Administrator as prescribed in § 381.132.
Date of packing and date of processing; contents of cans. 9 C.F.R. § 381.126 (2013).
(a) Either the immediate container or the shipping container of all poultry food products shall be plainly and permanently
marked by code or otherwise with the date of packing. If calendar dating is used, it must be accompanied by an explanatory
statement, as provided in § 381.129(c)(2).
(b) The immediate container for dressed poultry shall be marked with a lot number which shall be the number of the day of
the year on which the poultry was slaughtered or a coded number.
(c) All canned products shall be plainly and permanently marked, by code or otherwise, on the containers, with the identity of
the contents and date of canning, except that canned products packed in glass containers are not required to be marked with
the date of canning if such information appears on the shipping container. If calendar dating is used, it must be accompanied
by an explanatory statement, as provided in § 381.129(c)(2).
(d) If any marking is by code, the inspector in charge shall be informed as to its meaning.
Federal Meat Inspection Act. 21 U.S.C. §§ 601 et seq. (2012).

Labeling, marking, and container requirements. 21 U.S.C. § 607 (2012).
(e) If the Secretary has reason to believe that any marking or labeling or the size or form of any container in use or proposed
for use with respect to any article subject to this subchapter is false or misleading in any particular, he may direct that such
use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not
be false or misleading.
False or misleading labeling or practices generally; specific prohibitions and requirements for labels and containers. 9 C.F.R. §
317.8 (2013).
(32) A calendar date may be shown on labeling when declared in accordance with the provisions of this subparagraph:
(i) The calendar date shall express the month of the year and the day of the month for all products and also the year in
the case of products hermetically sealed in metal or glass containers, dried or frozen products, or any other products
that the Administrator finds should be labeled with the year because the distribution and marketing practices with
respect to such products may cause a label without a year identification to be misleading.
(ii) Immediately adjacent to the calendar date shall be a phrase explaining the meaning of such date, in terms of
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“packing” date, “sell by” date, or “use before” date, with or without a further qualifying phrase, e.g., “For Maximum
Freshness” or “For Best Quality”, and such phrases shall be approved by the Administrator as prescribed in § 317.4.
False or misleading labeling or practices generally; specific prohibitions and requirements for labels and containers. 9 C.F.R. §
317.8 (2013).
(a) No product or any of its wrappers, packaging, or other containers shall bear any false or misleading marking, label, or other
labeling and no statement, word, picture, design, or device which conveys any false impression or gives any false indication of
origin or quality or is otherwise false or misleading shall appear in any marking or other labeling. No product shall be wholly
or partly enclosed in any wrapper, packaging, or other container that is so made, formed, or filled as to be misleading.
USDA Labeling Approval (Meat and Poultry). 9 C.F.R. § 317.4 (2013).

(a) No final labeling shall be used on any product unless the sketch labeling of such final labeling has been submitted for
approval to the Food Labeling Division, Regulatory Programs, Food Safety and Inspection Service, and approved by such
division, accompanied by FSIS form, Application for Approval of Labels, Marking, and Devices, except for generically
approved labeling authorized for use in § 317.5(b). The management of the official establishment or establishment certified
under a foreign inspection system, in accordance with part 327 of this subchapter, must maintain a copy of all labeling used,
along with the product formulation and processing procedure, in accordance with part 320 of this subchapter. Such records
shall be made available to any duly authorized representative of the Secretary upon request.
(b) The Food Labeling Division shall permit submission for approval of only sketch labeling, as defined in § 317.4(d), for all
products, except as provided in § 317.5(b) (2)–(9) and except for temporary use of final labeling as prescribed in paragraph (f)
of this section.
(c) All labeling required to be submitted for approval as set forth in § 317.4(a) shall be submitted in duplicate to the Food
Labeling Division, Regulatory Programs, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington,
DC 20250. A parent company for a corporation may submit only one labeling application (in duplicate form) for a product
produced in other establishments that are owned by the corporation.
(d) “Sketch” labeling is a printer’s proof or equivalent which clearly shows all labeling features, size, location, and indication
of final color, as specified in § 317.2. FSIS will accept sketches that are hand drawn, computer generated or other reasonable
facsimiles that clearly reflect and project the final version of the labeling. Indication of final color may be met by: submission
of a color sketch, submission of a sketch which indicates by descriptive language the final colors, or submission with the
sketch of previously approved final labeling that indicates the final colors.
(e) Inserts, tags, liners, pasters, and like devices containing printed or graphic matter and for use on, or to be placed within,
containers and coverings of product shall be submitted for approval in the same manner as provided for labeling in § 317.4(a),
except that such devices which contain no reference to product and bear no misleading feature shall be used without
submission for approval as prescribed in § 317.5(b)(7).
(f)(1) Consistent with the requirements of this section, temporary approval for the use of a final label or other final labeling
that may otherwise be deemed deficient in some particular may be granted by the Food Labeling Division. Temporary
approvals may be granted for a period not to exceed 180 calendar days, under the following conditions:
(i) The proposed labeling would not misrepresent the product;
(ii) The use of the labeling would not present any potential health, safety, or dietary problems to the consumer;
(iii) Denial of the request would create undue economic hardship; and
(iv) An unfair competitive advantage would not result from the granting of the temporary approval.
(2) Extensions of temporary approvals may also be granted by the Food Labeling Division provided that the applicant
demonstrates that new circumstances, meeting the above criteria, have developed since the original temporary approval
was granted.
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(g) The inspector-in-charge shall approve meat carcass ink brands and meat food product ink and burning brands, which
comply with parts 312 and 316 of this subchapter.
Egg Products Inspection Act. 21 U.S.C. §§ 1031 et seq. (2012).

False or misleading or use of nonapproved labeling or containers; determination by Secretary; procedures applicable; appeal. 21
U.S.C. §§ 1036 (2012).
(b) No labeling or container shall be used for egg products at official plants if it is false or misleading or has not been approved
as required by the regulations of the Secretary. If the Secretary has reason to believe that any labeling or the size or form of any
container in use or proposed for use with respect to egg products at any official plant is false or misleading in any particular,
he may direct that such use be withheld unless the labeling or container is modified in such manner as he may prescribe so
that it will not be false or misleading.
Perishable Agricultural Commodities Act. 7 U.S.C. § 499a et seq. (2012).

Unfair conduct. 7 U.S.C.§ 499b (2012).
(4) For any commission merchant, dealer, or broker to make, for a fraudulent purpose, any false or misleading statement
in connection with any transaction involving any perishable agricultural commodity which is received in interstate or
foreign commerce by such commission merchant, or bought or sold, or contracted to be bought, sold, or consigned, in such
commerce by such dealer, or the purchase or sale of which in such commerce is negotiated by such broker; or to fail or refuse
truly and correctly to account and make full payment promptly in respect of any transaction in any such commodity to the
person with whom such transaction is had; or to fail, without reasonable cause, to perform any specification or duty, express
or implied, arising out of any undertaking in connection with any such transaction; or to fail to maintain the trust as required
under section 499e (c) of this title.
Federal Trade Commission

Federal Trade Commission Act. 15 U.S.C. § 45 et seq. (2012).
Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade. 15 U.S.C. § 45 (a) (2012).
(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting
commerce, are hereby declared unlawful.
(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks,
savings and loan institutions described in section 57a (f)(3) of this title, Federal credit unions described in section 57a (f)(4)
of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of
subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act,
1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227 (b)], from using unfair
methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.
Fair Packaging and Labeling Act. 15 U.S.C. § 1451 et seq. (2012).

Scope of additional regulations. 15 U.S.C. § 1454 (2012).
(c) Whenever the promulgating authority determines that regulations containing prohibitions or requirements other than those
prescribed by section 1453 of this title are necessary to prevent the deception of consumers or to facilitate value comparisons as
to any consumer commodity, such authority shall promulgate with respect to that commodity regulations effective . . .
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Appendix B: State Requirements in Brief;
Supporting Charts for Figures 2 and 3.
Supporting Chart for Figure 2
DATE DATE
NO FOODS FOR WHICH NO FOODS FOR WHICH
STATE LABELS STATE LABELS
REQUIREMENT DATE IS REQUIRED REQUIREMENT DATE IS REQUIRED
REQUIRED REQUIRED
ALABAMA X Milk; potentially
NEVADA X
hazardous foods
ALASKA X Shellfish
Cream; prewrapped
ARIZONA X Eggs NEW HAMPSHIRE X
sandwiches
ARKANSAS X Shellfish NEW JERSEY X Milk/dairy; shellfish
CALIFORNIA X Milk/dairy; Shellfish NEW MEXICO X Milk/dairy
COLORADO X Eggs NEW YORK X
CONNECTICUT X Milk/dairy NORTH CAROLINA X Shellfish
DELAWARE X Shellfish NORTH DAKOTA X Shellfish
FLORIDA X Shellfish; milk/dairy Packaged perishable
Eggs; milk; shellfish; OHIO X
foods; shellfish
GEORGIA X prepackaged OKLAHOMA X Eggs; shellfish
sandwiches
Packaged perishable
HAWAII X Milk OREGON X
foods
IDAHO X PENNSYLVANIA X Milk/dairy; shellfish
ILLINOIS X Packaged bakery
RHODE ISLAND X
INDIANA X Eggs; shellfish products; shellfish
IOWA X Eggs SOUTH CAROLINA X Eggs; shellfish
KANSAS X Eggs SOUTH DAKOTA X
KENTUCKY X Milk; shellfish TENNESSEE X
LOUISIANA X Eggs TEXAS X Shellfish
MAINE X Shellfish UTAH X
MARYLAND X Milk (Grade A) VERMONT X Shellfish
Packaged perishable VIRGINIA X Dairy; shellfish
MASSACHUSETTS X or semi-perishable Packaged perishable
foods WASHINGTON X
foods
Pre-packaged Potentially hazardous
MICHIGAN X perishable foods; foods, dairy, meat,
milk/dairy poultry, fish, bread
Eggs; perishable WASHINGTON, D.C. X products, eggs, cold
MINNESOTA X
foods; shellfish meats, packaged
MISSISSIPPI X Shellfish perishable foods,
shellfish etc.
MISSOURI X
WEST VIRGINIA X Eggs
MONTANA X Milk/dairy
WISCONSIN X Eggs; shellfish
NEBRASKA X
WYOMING X Shellfish
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Supporting Chart for Figure 3
PAST-DATE FOODS FOR WHICH PAST-DATE FOODS FOR WHICH

NO NO
STATE SALES SALE AFTER DATE IS STATE SALES SALE AFTER DATE IS
REGULATION REGULATION
REGULATED RESTRICTED REGULATED RESTRICTED
Meat, Class A foods MISSOURI X
(baby food, infant MONTANA X Milk
ALABAMA X
formula, potentially
hazardous foods)
NEBRASKA X
ALASKA X Potentially hazardous
NEVADA X
foods
ARIZONA X
Pre-wrapped
ARKANSAS X NEW HAMPSHIRE X
sandwiches
CALIFORNIA X NEW JERSEY X Milk
COLORADO X Eggs NEW MEXICO X Milk/dairy
CONNECTICUT X NEW YORK X
DELAWARE X NORTH CAROLINA X
Shellfish and milk/ NORTH DAKOTA X
FLORIDA X
dairy
OHIO X
Eggs, infant formula,
shellfish, milk,
OKLAHOMA X
GEORGIA X potentially hazardous Packaged perishable
OREGON X
foods, pre-packaged foods
sandwiches PENNSYLVANIA X Milk
HAWAII X Packaged bakery
RHODE ISLAND X
IDAHO X products
ILLINOIS X Eggs SOUTH CAROLINA X
INDIANA X SOUTH DAKOTA X
IOWA X TENNESSEE X
KANSAS X TEXAS X
KENTUCKY X Milk/milk products UTAH X
LOUISIANA X VERMONT X
MAINE X VIRGINIA X Dairy
MARYLAND X Milk Perishable packaged
WASHINGTON X
foods
All food products
(special focus on Potentially hazardous
MASSACHUSETTS X foods, dairy, meat,
perishable and semi-
perishable foods) poultry, fish, bread
WASHINGTON, D.C. X
products, eggs, cold
Pre-packaged
meats, packaged
MICHIGAN X perishable foods,
perishable foods, etc.
meat, milk/dairy
WEST VIRGINIA X
MINNESOTA X
WISCONSIN X Eggs
MISSISSIPPI X
WYOMING X
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Appendix C: State Date Labeling
Regulations in Full
Explanation of Qualifications for Applicable Regulations

This table includes information from all 50 states and the food products for which they regulate date labeling. Though this
research is detailed, it is not complete and not all food products are covered in the following pages. Some food products that
are not included in this appendix are:
• Reduced-oxygen packaged foods, which are regulated in many states

• Refrigerated, ready-to-eat, potentially hazardous foods
• Infant formula, which already requires a “use by” date under federal law276
• Salvageable merchandise, which could require further labeling information for foods sold after date
• Very specific foods items that are unique to a few states (e.g. fresh-squeezed juices)
In addition, the legal language included herein is excerpted from the laws and thus may be incomplete in some places.
How to Use This Table

• The table is divided into four columns:
1) Column I (Applies to Food Type) specifies the type of food to which the state law applies. “General” refers to
regulations that are not associated with a specific food but apply to all food types; otherwise the specific food
type will be stated.
2) Column II (Purpose of Law) provides broad information about the relevant section of the law as applied to
the particular food, specifying whether or not date labeling is required, whether or not sale after the date is
restricted (and any exemptions); and whether or not alteration of date labels is permitted, when relevant.
The term “date labels” is used generally in this column to include all terms, such as “sell by,” “use by,” “best
before,” etc., even if the law itself may be more specific.
3) Column III (Excerpted Language from the Law) contains excerpts of the exact language from the law or
regulation.
4) Column IV (Legal Citation) contains the citation to the relevant section of state law or regulation.
• States with an “*” after them have adopted some version of the Open Dating regulation contained in the Uniform
Packaging and Labeling Regulation in NIST Handbook 130, according to the 2013 edition of the Handbook.277
• States with no current regulations according to the qualifications assessed in this report contain “- -“ under
each column.
**The information contained herein is current as of August 2013.
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State Date Labeling Regulations
I. Applies To II. Purpose of III. Excerpted Language from the Law IV. Legal Citation
Food Type Law
Alabama
General Definition (date (4)(a)(8) “Date limit” means all terms reasonably construed to mean food is not intended to be Ala. Admin Code r. 420-
limit) used or sold after the date limit, or that food quality is best before the date limit, and includes 3-22.01 (2013).
but is not limited to the terms “Sell By;” “Freeze By;” “Sell or Freeze By;” “Not to be Sold
After;” “Best if Used By;” “Best if Purchased By,” “Expiration;” or other similar designations.
Definition (14) Open-date statement. Terms “Sell By”; “Freeze By”; “Sell or Freeze By”; “Not to be Sold Ala. Code § 20-1-20
(open-date After”; “Best if Used By”; “Expiration”; or other terms as defined by rules or regulations; or a (2013).
statement) date without additional words shall be considered an open-date statement
Additional (1) In addition to the terms listed in §20-1-20 (definitions) for (14) open date statements, Ala. Admin. Code r. 80-
descriptive the following list of terms and other terms with similar import, shall also be included and 1-22-.33 (2013).
terms (open- considered as open date statements:
date statement) (a) “For full fresh flavor use by”
(b) “For best quality purchase and use by date shown”
(c) “Use/freeze by”
(d) “Prepare or freeze by”
(e) “For wholesome great taste, serve before date stamped below”
(f) “Best when purchase by date”
(g) “Best if sold by”
(h) “Best used by”
(i) “Product expiration”
(j) “Expiration date”
(k) “Best by”
(l) “Best before”
(m) “Best when purchase by”
(n) “Use before”
(o) “Use by”
(p) “Full freshness until date shown when stored unopened at 40 or below”
(q) “Prepare by”
(r) “Fresh until”
(s) “Use or freeze by”
(t) “Sell or use by”
(u) “Freshness through”
Alteration of No person shall engage in any of the following activities within this state: . . . Ala. Code § 20-1-27
date labels not (3)a. Obscure, remove, or otherwise render illegible any information appearing on beverage (2013).
permitted labels, packages, or containers related to production information, best before dates, or other
disclosure printed on, affixed to, or appearing on the labels, packages, or containers.
b. This subdivision shall not apply to any alteration of a beverage label, package, or container
made by, or at the direction of, either the owner of the trademark rights to the brand that
appears on the beverage label, package, or container or an authorized manufacturer of the
beverage.
c. This subdivision shall not apply to alcoholic beverages as defined in Section 28-3-1.
d. This subdivision shall not apply to any entity, organization, or association, including, but
not limited to, a nonprofit or other fund-raising organization that does not operate for a
commercial purpose.
(4)a. Store or transport any beverage product that bears a labeling that has been obscured,
removed, or rendered illegible as described in subdivision (3).
b. This subdivision shall not apply to any alteration of a beverage label, package, or container
made by, or at the direction of, either the owner of the trademark rights to the brand that
appears on the beverage label, package, or container or an authorized manufacturer of the
beverage.
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Class A Definition (class (4) Class A foods. Baby food, infant formula, and potentially hazardous food. Ala. Code § 20-1-20
Foods A foods) (2013).
Date labeling Date labeling not required for Class A food products in Alabama (with the exception of infant No relevant state law.
not required formula, which is federally regulated).278
Sale after date No person shall engage in any of the following activities within this state: . . . (2) Sell or offer Ala. Code § 20-1-27
not permitted for sale out-of-date Class A foods which include baby food, infant formula, and potentially (2013).
hazardous food.
Alteration of (1) Packages of potentially hazardous foods bearing an open date statement are not to be Ala. Admin. Code r. 80-
date labels repacked or relabeled or otherwise altered in a manner that would change the open date 1-22-.36 (2013).
not permitted statement originally placed on the package. It is not permissible to reprocess products by
(potentially freezing, slicing, grinding, cubing, dicing, marinating, chopping, or other similar methods
hazardous unless the original open date statement is maintained on the product label.
foods)
Meat Date labeling Date labeling not required for meat products in Alabama. No relevant state law.
Products not required
Sale after date (4) It is not permissible to freeze, sell, or offer for sale any ready-to-eat meat product after Ala. Admin. Code r. 80-
not permitted the expiration of the open-date statement. It is not permissible to freeze, sell, or offer for 1-22-.36 (2013).
sale a product having the appearance of a ready-to-eat meat product (e.g., smoked sausages
and smoked hams) after the expiration of the open-date statement unless such product bears
labeling to include safe handling statements and proper cooking instructions.
Sale after date (3) Any rule in this chapter to the contrary not withstanding, meat products bearing an Ala. Admin. Code r. 80-
not permitted open-date statement may be frozen and sold after the original expiration date only if all the 1-22-.36 (2013).
–exemptions following stipulations are met:
(a) The product is a fresh or raw meat product that is frozen prior to the expiration of the
open-date statement.
(b) The product is labeled “Frozen on _______,” with the month, day, and year the product is
frozen in the blank.
(c) The original open-date statement is maintained on the product package.
(d) If offered for sale at retail, the product is frozen and labeled and sold only to a household
consumer by the same establishment that originally offered the product for retail sale.
(e) If offered for sale at wholesale (i.e., warehouse, manufacturer, or distributor) the product
is frozen and labeled and sold only to the end user (i.e., consumer, restaurant, or hotel).
Provided however that consumer ready packages of fresh or raw meat can be sold to retail
establishments if all other provisions of this rule are followed and each package is properly
labeled.
(f) Products frozen before the expiration of the open-date statement may not be thawed or
further processed in any manner.
(g) All products properly frozen and labeled must also maintain the safe handling labels as
mandated through USDA.
(h) Products not properly labeled, re-labeled or exempted as set forth in (a) through (h) of this
rule shall be deemed date expired and shall be included in the equivalent number utilized to
determine the applicable class of violation as determined by Rule No. 80-1-22-.32.
(i) Nothing in this paragraph (3) of Rule 80-1-22-.36 shall preclude a manufacturer or
wholesaler or retailer from having more stringent requirements for their products. Nothing
in this paragraph is intended to negate the agreement between sellers of these products
concerning guarantees or credit for expired products.
Alaska
Shellfish Date labeling (c) In addition to meeting the requirements of (a) and (b) of this section, the operator of a food Alaska Admin. Code tit.
required establishment shall obtain . . . (6) molluscan shellfish that are . . . packaged and identified as 18, §31.200 (2013).
follows:
(A) fresh or frozen shucked molluscan shellfish packaged in a single-use container with a label
that identifies the name, address, and permit number of the shucker-packer or repacker of the
molluscan shellfish, and either the sell-by date or the date shucked;
Sale after date Not restricted for shellfish in Alaska. No relevant state law.
not restricted
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Arizona
Eggs Definition 13. “Expiration date” means the words “sell by” or “buy thru” followed by a date, including Ariz. Rev. Stat. Ann. §
(Expiration the month and day, that is not more than twenty-four days after the eggs were candled and 3-701 (2013).
date) that includes the date the eggs were candled.
Date labeling E. Cases, half cases, cartons or containers marked grade AA or grade A shall be marked with Ariz. Rev. Stat. Ann. §
required an expiration date. 3-719 (2013).
F. The expiration date marked on a case, half case or container holding fifteen dozen eggs or
more shall be plainly and conspicuously marked in bold-faced type not less than three-eighths
inch in height on one outward end of the case or container.
G. The expiration date marked on a carton or container holding less than fifteen dozen eggs
shall be plainly and conspicuously marked in bold-faced type not less than one-eighth inch
in height on one end of the outward top face of each carton and on one outward end or the
outward top of each container.
Sale after date Not restricted for eggs in Arizona. No relevant state law.
not restricted
Arkansas*
Shellfish Date labeling (A) Raw SHUCKED SHELLFISH shall be obtained in nonreturnable packages which bear a Ark. Code Ann. § 007-
required legible label that identifies the: . . . (2) The “sell by” or “best used by” date for packages 04-8 3-202.17 (2013).
with a capacity of less than 1.89 L (one-half gallon) or the date shucked for packages with a
capacity of 1.89 L (one-half gallon) or more
Sale after date Not restricted for shellfish in Arkansas. No relevant state law.
not restricted
California
Milk/Dairy Date labeling (a) At the time of sale to the consumer . . . there shall appear upon the package or container Cal. Food & Agric. Code
required of such product the date established by the processor as the date upon which, in order to § 36004 (2013).
insure quality, such product is normally removed from the shelf
Date labeling (a) Except as otherwise provided in Food and Agricultural Code Section 36004(c), the Cal. Code Regs. tit. III,
required (scope licensed milk products plant which bottles or packages the following products shall be § 627 (2013).
of law) responsible for affixing the quality assurance date to all containers which are offered for
sale to the consumer by a retail store: market milk, market cream, skim or non-fat milk, half
and half, sour cream, sour cream dressing, low-fat milk, flavored milk, flavored dairy drink,
yogurt, concentrated milk, concentrated skim milk, acidophilus milk, buttermilk and cultured
buttermilk, cottage cheese, creamed cottage cheese, homogenized creamed cottage cheese
spread, and partially creamed or low-fat cottage cheese.
(b) The quality assurance date shall be readily identifiable by the consumer. If a numerical
sequence of months and days is used, it may not be located on the container with other
numbers such as factory license number or lot numbers unless such other numbers are clearly
identified. If the quality assurance date is used with unidentified code numbers, the date shall
be at least the first three letters of the month followed by the day of the month.
Sale after date Not restricted for milk in California. No relevant state law.
not restricted
Shellfish Date labeling (a) Raw shucked shellfish shall be obtained in nonreturnable packages that bear a legible Cal. Health & Safety
required label that identifies . . . a “sell by” date or a “best if used by” date for packages with a Code § 114039 (2013).
capacity of less than one-half gallon, or the date shucked for packages with a capacity of
one-half gallon or more.
Sale after date Not restricted for shellfish in California. No relevant state law.
not restricted
Colorado
General Alteration of A. When voluntary code date information appears on a retail food establishment or 6 Colo. Code Regs. §
date labels not manufacturers’ label, it shall not be concealed or altered. 1010-2:3-701 (2013).
permitted
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Eggs Date labeling 3.2 PACK DATE REQUIREMENTS 8 Colo. Code Regs. §
required Every case, carton, or container of shell eggs at the time of packing shall have legibly printed 1202-10:3.0 (2013).
thereon, in numerals not less than one-eighth inch in height, the date the eggs are first
packed, which shall be referred to in these rules as the “pack date.” The pack date shall be
stated numerically by month and day (e.g., 1/15), or by the numbered consecutive day of the
year (e.g., 123, being the 123rd consecutive day of the year).
Further date 3.3 SELL-BY DATE REQUIREMENTS 8 Colo. Code Regs. §
labeling Every case, carton, or container of shell eggs may, but need not have legibly printed thereon, 1202-10:3.0 (2013).
optional . . . a date by which the eggs must be sold, which shall be referred to in these rules as the
(formatting “sell-by date.” The sell-by date shall be no more than 30 days after the pack date. It shall
specified if be stated by month and day using the three-letter abbreviation of the month followed by the
used) numerical day of the month (e.g., Jan 15), and preceded by the term SELL BY or EXP.
Sale after date 4.1 No shell eggs may be offered for sale or sold to a consumer or restaurant more than 45 8 Colo. Code Regs. §
not permitted days after the pack date. 1202-10:4.0 (2013).
Connecticut*
Milk/Dairy Date labeling Each person, handler, firm or corporation shall clearly mark each container of milk or milk Conn. Gen. Stat. Ann. §
required product, cream, yogurt, cream cheese, cottage cheese, ricotta cheese, soft cheese, eggnog 22-197b (2013).
or sour cream offered for retail sale with a last sale date. In accordance with the provisions
of chapter 54, the Milk Regulation Board shall adopt regulations establishing standards and
criteria for label type size, color and wording that is consistent with national standards and
said board may incorporate by reference The Nutritional Education and Labeling Act, 21 CFR
101.
(b) Products not manufactured, packaged and heat treated in a manner that makes the product Conn. Agencies Regs.
safe to store at room temperature shall be conspicuously labeled with a last sale date. The §22-133-131 (2013).
last sale date shall be shown in contrasting color with the background. The last sale date
shall be expressed as “sell by”, “last sale date” or “must be sold by”.
Alteration of (f) The manufacturer’s last sale date or expiration date shall not be altered in any way. Conn. Agencies Regs. §
date labels not 22-133-123 (2013).
permitted
Sale after date Not restricted for milk in Connecticut. No relevant state law.
not restricted
Delaware
Shellfish Date labeling (A) Raw shucked shellfish shall be obtained in nonreturnable packages which bear: . . . (2) The 4000 Del. Admin. Code
required “sell by” date for packages with a capacity of less than 1.87 L (one-half gallon) or the date §3-202.17 (2013).
shucked for packages with a capacity of 1.87 L (one-half gallon) or more.
Sale after date Not restricted for shellfish in Delaware. No relevant state law.
not restricted
Florida
Shellfish Definition (65) Terminal sale date - the last day freshly packed shellfish shall be offered for sale; that Fla. Admin. Code Ann. r.
(terminal sale being no more than 14 calendar days subsequent to the date the product was shucked, or for 5L-1.002 (2013).
date) oyster shellstock harvested from the Gulf of Mexico, no more than 14 days subsequent to the
date shellstock was harvested.
Date labeling (1) . . . Containers of fresh shellfish, with a capacity of less than 64 ounces, shall further Fla. Admin. Code Ann. r.
required clearly and permanently bear the terminal sale date, by the numerical month, day, and last 5L-1.007 (2013).
digit of the year.
Sale after date (11) It shall be unlawful for any person, firm, corporation, wholesale or retail dealer to sell Fla. Admin. Code Ann r.
not permitted or offer for sale any fresh shellfish after the terminal sale date has expired, or sell or offer 5L-1.007 (2013).
for sale any fresh, frozen, or previously frozen shellfish not in compliance with any and all
requirements of Chapter 5L-1, F.A.C.
|
Milk/Dairy Date labeling (1)(a) All milk and milk products shall be legibly labeled with their shelf-life date. The date Fla. Admin. Code Ann. r.
required or date code for frozen desserts and other manufactured milk products shall be approved by 5D-1.007 (2013).
the department and shall indicate the date of manufacture of the product or the last day the
product is to be offered for sale.
Sale after date (1)(e) No milk or milk products shall be offered for sale as a grade A product after the shelf- Fla. Admin. Code Ann r.
not permitted life expiration date shown on the container. All milk and milk products offered for sale after 5D-1.007 (2013).
the shelf-life expiration date will be deemed to be misbranded and subject to be impounded
and made unsalable or otherwise disposed of by the department, under the provisions of
Section 502.231, F.S.
(1)(f) This rule does not apply to containers of milk or milk products which are not to be sold in
the State of Florida.
Georgia
General Definition (35) “Expiration Date” is synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Ga. Comp. R. & Regs.
(expiration Date, and Sell-By Date; and means the last date on which the following FOOD products can 40-7-1-.02 (2013).
date) be sold at retail or wholesale:
(a) Prepackaged sandwiches; (b) Eggs, (c) Infant formula,(d) Shucked oysters,(e) Milk, and (f)
POTENTIALLY HAZARDOUS FOOD
Eggs Date labeling All eggs that are sold, offered for sale or stored for sale at retail or wholesale shall use an Ga. Comp. R. & Regs.
required Open Date to express the packing date or the expiration date . . . (d) Manner of Expressing the 40-3-1.01 (2013).
Expiration Date: An Expiration Date shall be the use of an Open Date (as defined in 40-3-1-
.01(b) of these Regulations) preceded by the abbreviation “Exp.” [Example: EXP Jun 10] or the
use of an Open Date (as defined in 40-3-1-.01(b) of these Regulations) preceded by the term
“Sell By” [Example: Sell by JUN 10], or “Not to be Sold After” [Example: Not to be Sold After
JUN 10]; or “Best Before” [Example: Best Before JUN 10] or words of similar import.
Sale after date (e) Prohibited Acts: The following acts and the causing thereof are hereby prohibited. Ga. Comp. R. & Regs.
not permitted 1. Eggs are not to be sold or offered for sale at retail or wholesale after the expiration date. 40-3-1-.01 (2013).
2. Eggs are not to be sold or offered for sale that do not meet the U.S. Standards, Grades, and
Weight Classes for Shell Eggs Part 56, Subpart C, Paragraphs 56.216 and 56.217 established
pursuant to the Federal Agricultural Marketing Act of 1946;
(2) (c) EGGS cannot be offered or held for sale after the EXPIRATION DATE, according to Ga. Comp. R. & Regs.
Departmental Rules Chapter 40-3-1-.01(e)1. 40-7-1-.2 (2013).
Infant Date labeling (2) (a) Infant Formula.279 Ga. Comp. R. & Regs.
formula required 1. Each and every container of liquid or powdered infant formula made from two or more 40-7-1-.26 (2013).
ingredients and represented as or intended as a replacement or supplement for milk, shall
conspicuously show in common and express terms the calendar month and year after which
the product is not to be sold or used for human consumption.
2. The expiration date, or the date after which the product is not to be sold or used for human
consumption, shall be determined by the manufacturer based on empirical data, or other
verifiable scientific means.
Sale after date (2) Expiration Dates. It shall be unlawful to sell or offer for sale, at retail or wholesale, the Ga. Comp. R. & Regs.
not permitted following food items past the EXPIRATION DATE stated on the label: 40-7-1-.26 (2013).
(a) Infant Formula.
Milk Date labeling (2) All containers of milk and milk products shall be clearly marked with a Sell By Date with Ga. Comp. R. & Regs.
required the exception of frozen desserts and some shelf stable products where processing codes may 40-2-3-.01 (2013).
be required.
Sale after date (35) “Expiration Date” is synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Ga. Comp. R. & Regs.
not permitted / Date, and Sell-By Date; and means the last date on which the following FOOD products can 40-7-1-.02 (2013).
Definition be sold at retail or wholesale: . . . (e) Milk
(expiration
date)
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Shellfish Date labeling (8)(c)(a) Raw and frozen shucked molluscan shellfish shall be obtained in nonreturnable Ga. Comp. R. & Regs.
required packages legibly bearing . . . the “sell by” date for packages with a capacity of less than l.87L 40-7-1-.10 (2013).
(one-half gallon) or the date shucked for packages with a capacity of l.87L (one-half gallon) or
more.
Sale after date (35) “Expiration Date” is synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Ga. Comp. R. & Regs.
not permitted Date, and Sell-By Date; and means the last date on which the following FOOD products can 40-7-1-.02 (2013).
/ Definition be sold at retail or wholesale: . . . (d) Shucked oysters
(expiration
date)
Prepackaged Date labeling (2) (b) Prepackaged Sandwiches. Ga. Comp. R. & Regs.
Sandwiches required 1. Type A . . . (ii) Type A Sandwiches which are stored, transported and offered for sale in a 40-7-1-.26 (2013).
non-refrigerated state shall be labeled with an EXPIRATION DATE not later than two (2) days
from the date of manufacture.
2. Type B Sandwiches.
(i) Type B Sandwiches are those prePACKAGED sandwiches which are handled and sold as
refrigerated sandwiches . . . (iii) The EXPIRATION DATE for sandwiches shall state the last day
of sale in terms of the month, or its abbreviation, and numerical day of the month (e.g. 6-6).
The expiration day shall be preceded by an explanatory term, such as “Expires”, “Sell-By”, or
similar wording. Other PRODUCT CODES or dating methods are prohibited.
3. Type C Sandwiches.
(i) Type C Sandwiches are those prePACKAGED sandwiches which are immediately hard
frozen after manufacture, […] (iv) The EXPIRATION DATE, as required in Subparagraphs (ii)
and (iii) of this section, shall meet the criteria as in 40-7-1-.26(2)(b)2.(iii); and be conspicuously
displayed on the front of the wrapper.
Sale after date (2) Expiration Dates. It shall be unlawful to sell or offer for sale, at retail or wholesale, the Ga. Comp. R. & Regs.
not permitted following food items past the EXPIRATION DATE stated on the label: […](b) Prepackaged 40-7-1-.26 (2013).
Sandwiches. For the purpose of this section, prePACKAGED sandwiches shall be classified as
Type A, Type B or Type C.
Hawaii
Milk Date labeling Every container of processed milk and milk product held in retail and wholesale stores, Haw. Code R. § 11-15-
required restaurants, schools, or similar establishments for sale shall be conspicuously and legibly 39 (2013).
marked by the milk plant with the designation of the month and day of the month after which
the milk shall not be sold for human consumption.
Sale after date Not restricted for milk in Hawaii. No relevant state law.
not restricted
Idaho
-- -- --- --
Illinois
Eggs Date labeling (d) . . . it shall be allowable to include expiration dates in the labeling of consumer-size Ill. Admin. Code tit. 8, §
optional containers at retail. An expiration date, or other similar language as specified by USDA 65.30 (2013).
standards, that is not later than 30 days from the candling date for Grade A eggs and not later
than the 15 days from the candling date for Grade AA eggs shall be used.
Sale after date (d) . . . Eggs with an expiration date marked on the container shall not be offered for sale or Ill. Admin. Code tit. 8, §
not permitted sold to a consumer after the date marked on the container. 65.30 (2013).
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Indiana
Eggs Date labeling Sec. 2. All eggs offered for sale in consumer packages (cases, boxes, baskets, or containers): 370 Ind. Admin. Code
required (1) shall be legibly dated (month and day or consecutive day of the year) the day the eggs 1-3-2 (2013).
were packed;
(2) shall bear an expiration date of not more than thirty (30) days from date of pack, excluding
date of pack; and
(3) may contain a “BEST BY”, “BEST IF USED BY”, or “USE BY” date in addition to the
expiration date, which shall not exceed forty-five (45) days from the date of pack, excluding
the date of pack.
Shell eggs labeled AA shall bear in distinctly legible form an expiration date of no more than
ten (10) days from date of pack excluding date of pack. The expiration date shall be stated as
the month and day, for example, April 3 or 4-3, preceded by the letters “EXP” or “SELL BY”.
Quality is best if sold by the expiration date.
Sale after date Not restricted for eggs in Indiana. No relevant state law.
not restricted
Shellfish Date labeling Sec. 156 (a) Raw shucked shellfish shall be obtained in nonreturnable packages that bear a 410 Ind. Admin. Code
required legible label that identifies the . . . “sell by” date for packages with a capacity of less than 7-24-156 (2013).
one-half ( ½ ) gallon or the date shucked for packages with a capacity of one-half ( ½ ) gallon
or more.
Sale after date Not restricted for shellfish in Indiana. No relevant state law.
not restricted
Iowa
Eggs Date labeling (2) Each carton containing eggs for retail sale in Iowa which have been candled and graded Iowa Admin. Code r.
required shall be marked with: 21-36.8 (2013).
a. The grade and size of the eggs contained;
b. The date the eggs were packed; and
c. The name and address of the distributor or packer.
Sale after date Not restricted for eggs in Iowa. No relevant state law.
not restricted
Kansas
Eggs Date labeling (a) Each container of eggs shall be labeled with the following information: . . . (6) the Kan. Stat. Ann. §
required expiration date which shall be preceded by “exp,” “sell by,” “use by” or similar language. 2-2509 (2013).
Sale after date Not restricted for eggs in Kansas. No relevant state law.
not restricted
Kentucky
Milk/Milk Definition (Open Section 1. (29) “Open date” means the date which shall be affixed on a consumer package 902 Ky. Admin. Regs.
Products date) or container of Grade A pasteurized milk or milk products subsequent to the date of 50:010 (2013).
manufacturing, processing or packaging and which represents the period of time that the
product will remain unspoiled and acceptable for consumption when transported, handled and
stored under approved conditions.
Date labeling Section 1. Open Date Required. No person shall sell or offer for sale any Grade A pasteurized 902 Ky. Admin. Regs.
required milk or milk product in this state in a consumer package that does not bear the open date as 50:080 (2013).
required by this administrative regulation.
Sale after date Section 4. Enforcement. If a product is not sold within the period specified in the open date, 902 Ky. Admin. Regs.
not permitted the cabinet shall take action to remedy the condition consistent with this administrative 50:080 (2013).
regulation by removing the product from consumer channels and causing the product to be
returned to the milk plant of origin for destruction.
Shellfish Date labeling Section 9. (4) The certified shellfish dealer shall assure that each package containing less than 902 Ky. Admin. Regs.
required sixty-four (64) fluid ounces of fresh or frozen shellfish shall have: 45:020 (2013).
(b) A “sell by date” which provides a reasonable subsequent shelf-life or the words “Best if
used by” followed by a date if the product would be expected to reach the end of its shelf-life.
The date shall consist of the abbreviation for the month and number of the day of the month.
For frozen shellfish, the year shall be added to the date.
Sale after date Not restricted for shellfish in Kentucky. No relevant state law.
not restricted
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Louisiana
Eggs Date labeling B. Each carton or sleeve shall have on each individual container the following: La. Admin. Code tit. 7,
required 2. the date when packed; pt. V § 929 (2013).
Sale after date Not restricted for eggs in Louisiana. No relevant state law.
not restricted
Maine
Shellfish Date labeling A. Each individual package containing fresh or fresh frozen shucked shellfish meat shall bear 13-188 Me. Code R. §
required a permanent printed label approved by the Department that is legibly and indelibly marked in 15.21 (2013).
accordance with applicable federal and state regulations to contain, but not be limited to, the
following . . .
B. The dealer shall also label each individual package containing less than 64 fluid ounces
(1873 ml) of fresh or fresh frozen shellfish with the following:
1. The words “SELL BY DATE” or “BEST IF USED BY” followed by a date when the product
would be expected to reach the end of its shelf life.
2. The date shall consist of the abbreviation for the month and number of the day of the
month; and
3. For fresh frozen shellfish, the year shall be added to the date.
Sale after date Not restricted for shellfish in Maine. No relevant state law.
not restricted
Maryland
Milk Date labeling B. A permittee shall conspicuously and legibly mark the cap or non-glass container of Grade Md. Code Regs.
(Grade A) required A fluid milk with the words “Sell by”, followed by the designation of the month and the day of 10.15.06.10 (2013).
the month after which the product may not be sold, delivered, or offered for sale.
Sale after A. Except as provided in §B of this regulation, a person may not offer Grade A fluid milk for Md. Code Regs.
date not sale beyond the sell-by date. 10.15.06.11 (2013).
permitted (with B. The following establishments may use or serve Grade A fluid milk up to 4 days beyond the
exemptions) sell-by date:
(1) Food service facilities;
(2) Hospitals;
(3) Schools;
(4) Institutions; and
(5) Places where milk is consumed on the premises.
C. An establishment listed in §B of this regulation shall ensure that Grade A fluid milk is used
by the establishment not later than 4 days beyond the sell-by date.
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MassachusettS
General Definition (best (C) Definitions . . . 105 Mass. Code Regs.
if used by date) Best If Used by Date: A date no later than the expiration of the estimated shelf life of a food 520.119 (2013).
product . . .
Definition (sell (C) Definitions . . . 105 Mass. Code Regs.
by date) Sell by Date: A recommended last date of retail sale of a food product which provides for a 520.119 (2013).
reasonable subsequent period of home shelf life.
Date label (G) (1) Placement of the Date. A date shall be displayed with the term “sell by” or “best if 105 Mass. Code Regs.
required used by” in reasonable proximity to the designated date. 520.119 (2013).
(2) Such a date shall consist of the common abbreviation for the calendar month and numerals
for the day and year, e.g., Feb. 10, 1980; or numerals for the month, day and year, e.g.,
2/10/80, except that:
(a) Perishable food products need not have the year identification included in the date, and
frozen and long shelf life foods need not have the day identification included in the date.
(b) Fresh bakery products may be dated with only the day designation, e.g., Monday, or an
abbreviation thereof, e.g., Mon.
(3) A date shall be accompanied by disclosure of recommended product storage conditions, if
such conditions significantly affect the validity of such a date.
(4) A date and any recommended storage conditions shall be printed, stamped, embossed,
perforated, or otherwise shown on the retail package, a label on such package, or a tag
attached to such package in a manner that is easily readable and separate from other
information, graphics, or lettering so as to be clearly visible to a prospective purchaser.
(5) If a date and recommended storage conditions do not appear on the principal display
panel, the information panel, or on another conspicuous portion of the individual retail
package, a statement must appear on the principal display or information panel indicating
where such information can be found elsewhere on the package.
(6) An individual prepackaged food product which is not labeled in accordance with the
provisions of 105 CMR 520.119 shall be deemed “mis-branded” pursuant to M.G.L. c. 94, §
187.
Sale after date (F) Sale of Past Date Food Products. No person shall offer for sale in the Commonwealth any 105 Mass. Code Regs.
not permitted food product after the expiration of a “sell by date” or a “best if used by date” unless: 520.119 (2013).
(1) It is wholesome and its sensory physical qualities have not significantly diminished; and,
(2) It is segregated from food products which are not “past date”; and,
(3) It is clearly and conspicuously marked either on the package or through the use of shelf
markers or placecards, as being offered for sale after the recommended last date of sale or
best use.
(K) (1) Exemptions

105 CMR 520.101 through 520.205 do not apply to:
(a) Fresh meat, fresh poultry, fresh fish, fresh fruits, and fresh vegetables offered for sale
unpackaged or in a container permitting sensory examination.
(b) Salt and crystallized refined sugar.
(c) Food products shipped in bulk form for use solely in the manufacture of other foods and not
for distribution to the consumer in such bulk form or container.
(d) Individually packaged food products which are prepackaged as components of a larger
food item, if the larger food item is identified with a date no later than the corresponding date
for any such components.
(e) Food products prepackaged for retail sale with a net weight of less than 1½ ounces.
(f) Food products manufactured for sale outside the Commonwealth, processed for sale
outside the Commonwealth, or stored for sale outside the Commonwealth.
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Packaged Date labeling (D) Open Dating of Perishable and Semi Perishable Food Products 105 Mass. Code Regs.
Perishable required No person shall sell, offer for sale, or have in his possession with intent to sell, prepackaged 520.119 (2013).
or Semi- perishable or semi-perishable food products unless they are identified with a “sell-by-date” or
Perishable a “best if used by date” determined by the manufacturer, processor, packer, repacker, retailer,
Foods or other person who had packaged such food products and displayed in the form specified in
105 CMR 520.119
Sale after date (F) Sale of Past Date Food Products. No person shall offer for sale in the Commonwealth any 105 Mass. Code Regs.
not permitted food product after the expiration of a “sell by date” or a “best if used by date” unless: 520.119 (2013).
(1) It is wholesome and its sensory physical qualities have not significantly diminished; and,
(2) It is segregated from food products which are not “past date”; and,
(3) It is clearly and conspicuously marked either on the package or through the use of shelf
markers or placecards, as being offered for sale after the recommended last date of sale or
best use.
(K1) (1) Exemptions

105 CMR 520.101 through 520.205 do not apply to:
(a) Fresh meat, fresh poultry, fresh fish, fresh fruits, and fresh vegetables offered for sale
unpackaged or in a container permitting sensory examination.
(b) Salt and crystallized refined sugar.
(c) Food products shipped in bulk form for use solely in the manufacture of other foods and not
for distribution to the consumer in such bulk form or container.
(d) Individually packaged food products which are prepackaged as components of a larger
food item, if the larger food item is identified with a date no later than the corresponding date
for any such components.
(e) Food products prepackaged for retail sale with a net weight of less than 1½ ounces.
(f) Food products manufactured for sale outside the Commonwealth, processed for sale
outside the Commonwealth, or stored for sale outside the Commonwealth.
Michigan*
General Definition (date) (a) “Date” means 1 of the following: Mich. Comp. Laws Ann.
(i) For perishable food, the recommended last day of sale. § 289.8107 (2013).
(ii) For nonperishable food, the recommended last day of sale or consumption, if any.
Pre- Date labeling (2) A retail food establishment shall not sell or offer for sale a prepackaged perishable Mich. Comp. Laws Ann.
packaged required food unless the package bears a label with a date identified by month and day, except that § 289.8107 (2013).
Perishable bakery products with a shelf life of 7 days or less may be dated with a day of the week
Foods or an abbreviation. A retail food establishment may sell or offer for sale a prepackaged
nonperishable food with or without a label that bears a date.
Date labeling (b)(c)(3) The date for prepackaged perishable food may be displayed with or without Mich. Comp. Laws Ann.
required explanatory terms. If explanatory terms are used, the terms shall be limited to 1 of the § 289.8107 (2013).
following: “Sell by _____”, “Sell before _____”, “Last date of sale _____”, “Recommended
last date of sale _____”, or “Recommended sale date _____”. Other meaningful terms may
be used if specifically approved by the department.
Sale after date (b)(c)(4) . . . A retail food establishment shall not sell or offer for sale any of the following Mich. Comp. Laws Ann.
not permitted foods under the following circumstances . . . (b) After the date, nonperishable food or § 289.8107 (2013).
prepackaged perishable food unless the food is wholesome and sound and is clearly identified
as having passed the date. (c) Nonperishable food that is no longer wholesome or sound.
Milk/Dairy Date labeling Sec. 69 (1) Each processor and manufacturer of milk and milk products sold in this state shall Mich. Comp. Laws Ann.
required place on each container of milk and milk products a recommended last day of sale by month § 288.539 (2013).
and date. (2) The sell-by date shall be expressed by the first 3 letters of the month followed
by the numeral designating the appropriate calendar day or by expressing the calendar month
numerically followed by a numeral designating the calendar day.
(3) The sell-by date shall appear on that part of the container that is most likely to be
displayed, presented, or shown under customary display conditions of sale. However, a cup
container may have the sell-by date placed on the bottom.
Sale after Sec. 69 (9) Milk and milk products shall not be offered for sale after the sell-by date unless Mich. Comp. Laws Ann.
date not they are advertised to the final consumer in a prominent manner as being beyond the § 288.539 (2013).
permitted (with recommended last day of sale.
exemptions)
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Meat Date labeling Not required for meat in Michigan. No relevant state law.
not required
Sale after (4) A retail food establishment shall not sell or offer for sale any of the following foods under Mich. Comp. Laws Ann.
date not the following circumstances: § 289.8107 (2013).
permitted (with (a) After the date, meat that has been removed from a federally inspected retail package.
exemptions) (9) If the date is the recommended last day of sale, the date shall be calculated to allow a
reasonable period for the subsequent consumption of the food, but shall not allow for a period
which would result in a health nuisance as described in section 2107.
Minnesota
General Definition (open Subp. 7. Open date. “Open date” means a date consisting of the name or abbreviation or Minn. R. 1550.1040
date; quality numerical designation for the month, the numerical designation for the day of the month, and (2013).
assurance date) the name or abbreviation for the day of the week as provided herein, and if appropriate, the
year. An open date may be one of the following:
A. Date of manufacture: the date the product was manufactured or processed. This date
would be used with a statement such as “Use within 40 days of date shown” or other similar
phrasing.
B. Date of packaging: the date the product was placed in the retail package in advance of
sale. This date would be used with a statement such as “Use within 30 days of date shown”
or other similar phrasing.
C. Pull date: the recommended last date for retail sale. With this date use a statement such
as “Not to be sold after date shown” or “Do not sell after date shown” or “Last day of sale”
or some equivalent phrasing.
D. Freshness date (quality assurance date): of the last date which the manufacturer or
processor estimates the product will retain its original freshness or peak quality. With this
date use a statement such as “For maximum freshness use before date shown” or other
equivalent phrasing.
E. Expiration date: the last date the product can be expected to perform in a manner equal to
consumer expectations. With this date use a statement such as “For best results use before
the date shown” or other equivalent phrasing.
F. Shelf display date: the date used by a retailer to indicate when an item was put on display.
The purpose of this date, if used, is to aid in the proper rotation of stock and it would be used
by the retailer on those perishable foods which have short shelf life and which are exempt
herein from open dating.
Subp. 8. Quality assurance date. “Quality assurance date” means any date after which the
manufacturer or processor reasonably determines that the product may, by spoilage, wiltage,
drying, or any other foreseeable and natural phenomenon, lose its palatability or its desired or
nutritive properties. As used in these parts, “quality assurance date” signifies a period of time
beginning with the date of manufacture or the date when the food is packed for retail sale
and ending with an open date as defined and explained in subpart 7.
State No subordinate unit of government may adopt or enforce any rule or ordinance regarding open Minn. Stat. § 31.786
preemption of dating of perishable foods other than sections 31.781 to 31.789. (2013).
local rules
Eggs Date labeling Subpart 1. Pack date. Consumer grades of eggs must be pack dated in type not smaller than Minn. R. 1520.1900
required one-quarter inch capitals to indicate the date of pack. All cartons and cases must bear a (2013).
pack date. Retailers who carton eggs delivered in bulk cases must label the cartons with the
identical pack date on the bulk case.
Subp. 2. Quality assurance date. All consumer grade eggs must carry a “quality assurance
date” in addition to the pack date. The pack date must be a Julian date to not confuse it with
the quality assurance date. The quality assurance date must be spelled out as the month
or number of the month and day, for example, “2-1” or “Feb. 1.” The quality assurance date
must have an explanatory clause, such as “Sell by” or “Use by,” the word “Expires,” or the
abbreviation “Exp.”
Sale after date Nothing contained in sections 31.781 to 31.789 or any rule adopted pursuant hereto shall Minn. Stat. § 31.784
not restricted require the removal from sale of a perishable food product after the expiration of the quality (2013).
assurance date on the product nor imply that after the expiration of the quality assurance date
on the product, the product is not wholesome or safe for human consumption.
|
Perishable Definition Subd. 3. “Perishable food” means any food intended for human consumption (other than Minn. Stat. § 31.782
Foods (perishable meat and poultry, frozen food, or fresh fruit or vegetables), which has a quality assurance (2013).
food) date.
Date labeling Every manufacturer or processor of perishable food, except meat, poultry, frozen food, and Minn. R. 1550.1060
required fresh fruits and vegetables, as exempt by Minnesota Statutes, section 31.782, subdivision (2013).
3, and except as provided for herein, shall place on the package or label or labeling of such
perishable food an open date as described and provided for in parts 1550.1030 to 1550.1250.
Date labeling Perishable foods having quality assurance dates of more than 90 days need not bear open Minn. R. 1550.1160
required dates. (2013).
(exemptions)
Shellfish Date labeling A. Raw shucked shellfish shall be obtained in nonreturnable packages that bear a legible label Minn. R. 4626.0200
required that identifies: (2013).
(2) the “sell by” date for packages with a capacity of less than 1.87 liter (one-half gallon) or
the date shucked for packages with a capacity of 1.87 liter (one-half gallon) or more.
Mississippi
Shellfish Date labeling 100.06 On packages containing sixty-four (64) fluid ounces or more shall have on the lid and 43-46 Miss. Code R. §
required sidewall or bottom the “DATE SHUCKED” indicated as the number of the day, month and year 17 (LexisNexis 2013).
or the month, day and year.
100.07 On packages of less than sixty-four (64) fluid ounces of fresh product labeled with the
wording “SELL BY” followed by a date expressed as a month, day and year, not to exceed
seventeen (17) days from the date shucked.
Sale after date Not restricted for shellfish in Mississippi. No relevant state law.
not restricted
Missouri
-- -- --- --
Montana
Milk (Grade Definition (1)(d) “Pasteurized date” is the same date a unit of milk completes pasteurization. Mont. Admin. R.
A) (pasteurized 32.8.101 (2013).
date)
Definition (e) A “sell-by” date is defined as the 12th consecutive day, never to exceed 288 hours, Mont. Admin. R.
(“sell-by” date) following pasteurization of a unit of milk. 32.8.101 (2013).
Date labeling (1) Each container into which grade A pasteurized milk is placed for sale for public Mont. Admin. R.
required consumption must be marked with a pasteurized date and a sell-by date. 32.8.203 (2013).
(a) The sell-by and pasteurized date will be displayed in Arabic numerals or standard
abbreviations for day and month, which shows the last day the milk may be sold as required
by ARM 32.8.202.
Sale after date (1) When 12 days or more have passed following pasteurization of a unit of grade A Mont. Admin. R.
not permitted milk, there will be no quantities of that unit of milk sold or otherwise offered for public 32.8.202 (2013).
consumption.
(2) No grade A pasteurized milk may be put in any container marked with a sell-by date which
is more than 12 days after pasteurization of the milk for sale in Montana.
(3) Unless otherwise agreed upon, the person who offers the milk for sale to the public is
responsible for removing the milk at or before the expiration of the 12 days.
Nebraska
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Nevada*
Milk Date labeling 1. At the time of sale to the consumer by a retail store of any milk or milk product, there must Nev. Admin. Code §
required appear upon the package or container of the product the date established by the processor 584.4321 (2012).
as the date on which, in order to ensure quality, the product is to be removed from the shelf
or similar location or vehicle from which the product is offered for sale to the consumer.
This section does not apply to any bulk milk shipments of milk or milk products between
distributors.
Date labeling 2. The date respecting assurance of quality must appear at the top of the carton or package Nev. Admin. Code §
required and must be indelible and in a contrasting color to the carton or package in the area where 584.4321 (2012).
the date is affixed. The date respecting assurance of quality must be the first three letters of
the month followed by the day of the month. The date must be of a size commensurate with
the size of the container and the location on the container, but in no case may the letters be
less than three-sixteenths of an inch in height.
Sale after date Not restricted for milk in Nevada. No relevant state law.
not restricted
Potentially Definition 1. “Potentially hazardous food” means: Nev. Admin. Code §
Hazardous (potentially (a) Food that consists, in whole or in part, of milk, products made from milk, eggs, meat, 446.025 (2012).
Foods hazardous poultry, fish, shellfish, edible crustacea or other ingredients in a form capable of supporting
foods) the rapid and progressive growth of infectious or toxigenic microorganisms.
(b) Cereals, fruits, vegetables and dairy products, such as cooked rice, eggs, other than
powdered eggs, baked or boiled potatoes, moist soy protein products, any mixture that
includes garlic in oil, melons that have been cut, sliced or otherwise breached, whipped
butter, products of margarine that contain butter or raw seed sprouts, that have been declared
by the health authority to be potentially hazardous.
2. The term does not include foods which have a pH level of 4.1 or below or a value of water
activity of 0.85 or less.
Date labeling 4. Potentially hazardous foods which have been prepared by another food establishment or Nev. Admin. Code §
required food processing plant to be ready to eat and packaged in a container for refrigeration must be 446.145 (2012).
marked by the manufacturer to indicate the date by which the food must be sold, served or
frozen
Sale after date 4. These foods must be discarded if not sold, served or frozen: Nev. Admin. Code §
not permitted (a) Within 10 calendar days after the original container is opened; or 446.145 (2012).
(b) On or before the date by which the food must be sold or used, as indicated on the
container, whichever occurs first.
New Hampshire
Cream Date labeling II. All retail containers of cream sold or offered for sale shall be conspicuously marked N.H. Rev. Stat Ann. §
required with the date of the last day on which it may be sold or offered for sale with a reasonable 184:30-g (2013).
expectation that the cream will not be sour, as determined by the manufacturer.
Sale after date Not restricted for cream in New Hampshire. No relevant state law.
not restricted
Prewrapped Definition (a) “Expiration date” means the last day of sale, printed or stamped on a prewrapped N.H. Code Admin. R.
Sandwiches (expiration sandwich label, determined in accordance with these rules. Agr. 1412.03 (2013).
date)
Date labeling (c) The expiration date for a fresh refrigerated prewrapped sandwich shall be clearly and N.H. Code Admin. R.
required legibly printed or stamped by the vendor on the sandwich wrapper label, at the time it is Agr. 1412.04 (2013).
wrapped, by stating “expiration date” or “sell by” followed by the month and day.
(d) The expiration date for a previously frozen prewrapped sandwich shall be clearly and
conspicuously printed or stamped on the sandwich wrapper label, at the time it is thawed for
retail sale, by stating “expiration date” or “sell by” followed by the month and day.
(e) The expiration date for a fresh refrigerated prewrapped sandwich shall be determined by
the vendor who makes the prewrapped sandwiches.
Sale after date The purpose of these rules is to protect public health and safety by establishing an expiration N.H. Code Admin. R.
not permitted date on all sandwiches beyond which each sandwich shall not be sold. These rules implement Agr. 1412.01 (2013).
the procedures of the department of agriculture, markets, and food pursuant to RSA 438:26-b,
dating prewrapped sandwiches.
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New Jersey
Milk/Dairy Date labeling Containers of milk, certified milk, Vitamin D milk, homogenized milk, low fat milk, protein N.J. Stat. Ann. §
required fortified low fat milk, skim milk, protein fortified skim milk, nonfat milk, protein fortified 24:10-57.23 (2013).
nonfat milk, flavored milks and dairy drinks, buttermilk, cultured buttermilk, yogurt, eggnog,
creams, half-and-half and all other fluid milk products designated by the department shall
be marked with the name and address of the processor or the pasteurizing plant number as
assigned by the department or the state of origin and the name and address of the distributor.
All containers of fluid milk products, including those mentioned above, intended for sale to
consumers, (except for those products which are sterilized and packaged in hermetically
sealed containers), shall be marked with a legend “NOT TO BE SOLD AFTER”, or “SELL
BY”, or any other clearly understandable legend approved by the department, followed or
accompanied by the first three letters of the month where possible . . . If two letters are used
the letters MR shall mean MARCH and MY shall mean MAY; JN shall mean JUNE and JL
shall mean JULY.
Sale after date No fluid milk product listed in this section shall be sold or offered for sale after 11:59 p.m. of N.J. Stat. Ann. §
not permitted the date appearing on the containers so marked. 24:10-57.23 (2013).
(d) No milk product referred to in this regulation shall be sold or offered for sale after 11:59 N.J. Admin. Code §
P.M. of the date appearing on the package or container. Products delivered prior to the “shelf- 8:21-10.20 (2013).
life expiration date” may be consumed on the premises beyond the date appearing thereon.
Shellfish Date labeling (n)(1) Raw shucked shellfish, packaging and identification requirements include the following: N.J. Admin. Code §
required ... 8:24-3.2 (2013).
ii. The “sell by” date for packages with a capacity of less than one-half gallon or the date
shucked for packages with a capacity of one-half gallon or more.
Sale after date Not restricted for shellfish in New Jersey. No relevant state law.
not restricted
New Mexico
Milk/Dairy Definition (pull E. “Pull date” means the last day on which a product is to be sold or offered for sale for N.M. Code R. §
date) human consumption. 21.34.5.7 (2013).
Date labeling A. In addition to other labeling requirements, except as otherwise exempted in this rule, all N.M. Code R. §
required processors and producer distributors shall label each container of one-half (1/2) pint or larger 21.34.5.9 (2013).
of milk, lowfat milk, non-fat milk, flavored milk, skim milk, half and half and creams sold or
offered for sale with a legible pull date.
B. The length of pull date for pasteurized products shall be determined by the processor.
C. The length of pull date for raw products shall not exceed five (5) days including the date of
packaging.
Sale after date Dairy products required to be labeled with a pull date and those dairy products labeled with N.M. Code R. §
not permitted an optional pull date, except frozen, dried, condensed or evaporated products, may not be sold 21.34.5.16 (2013).
or offered for sale for human consumption by any person after the pull date.
New York
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North Carolina
General Alteration of A food shall be deemed to be misbranded: . . . N.C. Gen. Stat. Ann. §
date labels not (15) If the labeling provided by the manufacturer, packer, distributor, or retailer on meat, 106-130 (2013).
permitted meat products, poultry, or seafood includes a “sell-by” date or other indicator of a last
recommended day of sale, and the date has been removed, obscured, or altered by any person
other than the customer. This subdivision does not prohibit the removal of a label for the
purpose of repackaging and relabeling a food item so long as the new package or new label
does not bear a “sell-by” date or other indicator of a last recommended day of sale later than
the original package. This subdivision does not prohibit relabeling of meat, meat products,
poultry, or seafood that has had its shelf life extended through freezing, cooking, or other
additional processing that extends the shelf life of the product.
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Shellfish Definition (sell (26) “SELL BY date” means a date conspicuously placed on a container or tag by which a 15A N.C. Admin. Code
by date) consumer is informed of the latest date the product will remain suitable for sale. 18A.0301 (2013).
Date labeling (c) Any container of shucked shellfish which has a capacity of 64 fluid ounces or more shall be 15A N.C. Admin. Code
required dated as of the date shucked on both the lid and sidewall or bottom. Any container of shucked 18A.0614 (2013).
shellfish which has a capacity of less than 64 fluid ounces shall indicate a SELL BY date.
Sale after date Not restricted for shellfish in North Carolina. No relevant state law.
not restricted
North Dakota
Shellfish Date labeling 1. Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible N.D. Admin. Code 33-
required label that identifies . . . 33-04-03.1 (2013).
(b) The sell by date for packages with a capacity of less than 1.87 L (one-half gallon) or the
date shucked for packages with a capacity of 1.87 L (one-half gallon) or more.
Sale after date Not restricted for shellfish in North Dakota. No relevant state law.
not restricted
Ohio
General State (C) To ensure that a uniform system of determining the useful product life of perishable food Ohio Rev. Code Ann. §
preemption of products for sale within the state is established, persons complying with this section and the 3715.171 (2013).
local rules rules established pursuant thereto are exempt from any local ordinances or rules pertaining
to the quality assurance period of food products or the manner in which the quality assurance
period and perishability of food products are to be disclosed.
Definition “Quality assurance period” means the period of time following the completion of normal Ohio Rev. Code Ann. §
(quality manufacturing, processing, and packaging procedures during which a food product subjected 3715.171 (2013).
assurance to normal conditions of exposure will maintain conformity with all of the characteristics
period) normally associated with the food product and will provide the benefits for which the food
product is normally purchased. Food product characteristics include, but are not limited to,
taste, texture, smell, nutritional value, and reaction value with other food products if used as
an ingredient with other food products.
Definition (sale “Sale date” means the date by which the manufacturer, processor, or packager of a packaged Ohio Rev. Code Ann. §
date) food product recommends that the food product be sold for consumption based on the food 3715.171 (2013).
product’s quality assurance period.
Packaged Date labeling (A) Except as provided in division (B) of this section, no person shall knowingly sell or offer to Ohio Rev. Code Ann. §
Perishable required sell in this state any packaged perishable food product that has a quality assurance period of 3715.171 (2013).
Foods thirty days or less, unless the package is clearly marked by the packager with its sale date.
The sale date shall be legible and understandable to the consumer. The director of agriculture
shall make rules in accordance with Chapter 119. of the Revised Code establishing the
manner in which the sale date shall be affixed to food products.
(B) The provisions of this section do not apply to fresh fruits and vegetables or to meat,
including poultry, whether packaged or unpackaged, nor do they apply to packaged perishable
food products when sold or offered for sale at any place of business where less than one
hundred thousand dollars of all products were sold during the preceding year.
Sale after date Not restricted for packaged perishable foods in Ohio. No relevant state law.
not restricted
Shellfish Date labeling (F)(iii)(d) The dealer shall assure that each package containing less than sixty-four fluid ounces Ohio Admin. Code
required of fresh or frozen shellfish shall have: . . . 901:3-8-03 (2013).
(ii) A “Sell by date” which provides a reasonable subsequent shelf-life or the words “Best
if used by” followed by a date when the product would be expected to reach the end of its
shelf-life. The date shall consist of the abbreviation for the month and number of the day of
the month. For frozen shellfish, the year will be added to the date.
Sale after date Not restricted for shellfish in Ohio. No relevant state law.
not restricted
Oklahoma*
Eggs Date labeling B. An expiration date shall be used on the container, the date shall be preceded by “EXP”, Okla. Stat. tit. 2, §
required “sell by”, or “use through”. 10-72 (2013).
Sale after date Not restricted for eggs in Oklahoma. No relevant state law.
not restricted
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Shellfish Date labeling (a) Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible Okla. Admin. Code §
required label that identifies the . . . (2) The “sell by” or “best if used by” date for packages with a 310:257-5-15 (2013).
capacity of less than 1.89 L (one-half gallon) or the date shucked for packages with a capacity
of 1.89 L (one-half gallon) or more.
Sale after date Not restricted for shellfish in Oklahoma. No relevant state law.
not restricted
Oregon
Packaged Definition (open (2) “Open date” means a date clearly visible to retail consumers showing the pull date, Or. Rev. Stat. §
Perishable date) packing date or other date described in ORS 616.835 (2). 616.805 (2013).
Foods Date labeling No person shall sell or offer for sale at retail any packaged perishable food unless the Or. Rev. Stat. §
required package bears a clearly marked, printed or stamped label showing the open date for the 616.815 (2013).
perishable food in the package. Such label shall be so designed and placed as to be clearly
visible to the consumer.
Unless otherwise provided, the following perishable foods shall be open date labeled with Or. Admin. R. 603-025-
the pull date: 0080 (2013).
(1) Processed or cured meat and meat products including wieners, bologna, luncheon meat,
liver sausage, salami, braunschweiger, hams and ham products, and bacon (tuck or vacuum
packed).
(2) Fluid milk and cream products for which a standard of identity has been established under
ORS Chapter 621, cottage cheeses, yogurts, cheeses with a moisture content of more than 50
percent, sour creams, and party dips.
(3) Bakery products as defined in subsection (2) of ORS 625.010, pastries, cookies, or crackers
having a moisture content of 16 percent or more.
(4) Eggs in shell.
(5) Vegetable, macaroni, or potato salads that use mayonnaise or other acidic dressing as an
ingredient or dressing, puddings, sandwiches, and other ready-to-eat products.
(6) Fowl, including chickens, fryers, turkeys, ducks, geese, and other domesticated birds.
(7) Fresh or raw packaged meat products, whether whole, ground, chopped or fabricated.
(8) Fresh sausage products.
(9) Fresh seafood products.
(10) Fresh fish products (not breaded or precooked).
Sale after (1) No person shall sell or offer for sale at retail any packaged perishable food after the Or. Rev. Stat. §
date not expiration of the open pull date appearing on the label of the package or container unless: 616.825 (2013).
permitted (with (a) The package has been separated from packages of perishable food with open pull dates
exemptions) that have not expired;
(b) Each such package or group of packages is clearly identified in retail display as having an
expired open pull date; and
(c) The food is fit for human consumption according to applicable state and federal law.
(2) Notwithstanding the provisions of this section, a vendor shall be allowed the first eight
business hours after the expiration of the open pull date within which to remove all packages
with an expired pull date.
Alteration of No person shall: Or. Rev. Stat. §
date labels not (1) Alter, deface or remove the open date from any perishable food retail or shipping package 616.830 (2013).
permitted carton, container or wrapper.
(2) Label any perishable food retail or shipping package carton, container or wrapper in a
manner that does not conform to the rules promulgated pursuant to ORS 616.835.
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Pennsylvania
Milk Date labeling (a) Label requirement. The cap or nonglass container of pasteurized milk held in retail 7 Pa. Code § 59a.15
required food stores, restaurants, schools or similar food facilities for resale shall be conspicuously (2013).
and legibly marked in a contrasting color with the designation of the “sell-by” date--the
month and day of the month after which the product may not be sold or offered for sale.
The designation may be numerical--such as “8-15”--or with the use of an abbreviation for
the month, such as “AUG 15 or AU 15.” The words “Sell by” or “Not to be sold after” must
precede the designation of the date, or the statement “Not to be sold after the date stamped
above” must appear legibly on the container. This designation of the date may not exceed 17
days beginning after midnight on the day on which the milk was pasteurized.
Sale after date (c) Prohibition. Pasteurized milk may not be sold or offered for sale if the milk is sold or 7 Pa. Code § 59a.15
not permitted offered for sale after the sell-by date designated on the container. (2013).
Shellfish Date labeling (a) Label requirement. Raw shucked shellfish shall be obtained in nonreturnable packages 7 Pa. Code § 46.246
required which bear a legible label that identifies the following:[…] (2) For packages with a capacity of (2013).
less than 1.87 L (1/2 gallon): the “sell by” or “best if used by” date.
Sale after date Not restricted for shellfish in Pennsylvania. No relevant state law.
not restricted
Rhode Island
Packaged Definition (pull C) ‘Pull Date’ is the final date or day as established by the packer or manufacturer upon which 31-3-5 R.I. Code R. §
Bakery date) a packaged bakery product may be sold, except as provided under Chapter 21-33, Section 3 21-33-PBP 1.00 (2013).
Products and Section R21-33-PBP 6.00 of these rules and regulations.
Definition A) A ‘Packaged Bakery Product’ is a packaged bakery or bakery-type product consisting of 31-3-5 R.I. Code R. §
(packaged flour and other ingredients having a normal shelf life as established by the manufacturer or 21-33-PBP 1.00 (2013).
bakery product) distributor of sixty (60) days or less.
The term shall not include frozen or canned products or foods which are or may be baked as
part of a cooking or preparation procedure.
Date labeling All packaged bakery product sold in this state shall have a pull date in a conspicuous place 31-3-5 R.I. Code R. §
required upon each package in which they are sold in accordance with these regulations and Chapter 21-33-PBP 2.00 (2013).
21-33 of Rhode Island General Laws of 1956, as amended.
Sale after Packaged bakery products may be sold after their ‘Pull Date’, provided however, that: 31-3-5 R.I. Code R. §
date not (1) Such products are segregated from such products which have not passed their ‘Pull Date’, 21-33-PBP 6.00 (2013).
permitted (with and
exemptions) (2) Shelf markers or placards, or markings on the individual packages clearly identify such
products as being offered for sale ‘Past Date’.
The requirements of this section do not apply to any business whose exclusive purpose is the
sale of past-date bakery products.
Shellfish Date labeling 6.6 (d) The dealer shall assure that each package containing less than 64 fluid ounces of fresh 31-3-9 R.I. Code R. §
required or frozen shellfish shall have: 6.0 (2013).
(i) The shucker-packer’s or repacker’s license number on the label; and
(ii) A “SELL BY DATE” which provides a reasonable subsequent shelf-life or the words “BEST
IF USED BY” followed by a date when the product would be expected to reach the end of its
shelf-life. The date shall consist of the abbreviation for the month and number of the day of
the month. For frozen shellfish, the year will be added to the date.
Sale after date Not restricted for shellfish in Rhode Island. No relevant state law.
not restricted
South Carolina
Eggs Date labeling (E) . . . On this label must be printed or stamped, legibly in letters not less than one-fourth S.C. Code Ann. § 39-
required of an inch in size, the date when the eggs were packed and candled or the expiration date, 39-140 (2013).
which may not exceed forty-five days from the date packed
Sale after date Not restricted for eggs in South Carolina. No relevant state law.
not restricted
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Shellfish Date labeling (2) Packages containing less than sixty-four (64) fluid ounces shall include: S.C. Code Ann. Regs.
required (a) The words “SELL BY” or “BEST IF USED BY” followed by a reasonable date when the 61-47 (2013).
product would be expected to reach the end of its shelf life;
(b) The date as a month and day of the month; and
(c) For fresh frozen shellfish, the year shall be added to the date.
Sale after date Not restricted for shellfish in South Carolina. No relevant state law.
not restricted
South Dakota*
-- -- --- --
Tennessee
-- -- --- --
Texas
Shellfish Date labeling (d) The dealer shall assure that each package containing less than 64 fluid ounces of fresh or 25 Tex. Admin. Code §
required frozen molluscan shellfish shall have […] (2) a “SELL BY DATE” which provides a reasonable 241.66 (2013).
subsequent shelf life or the words “BEST IF USED BY” followed by a date when the product
would be expected to reach the end of its shelf life.
Sale after date Not restricted for shellfish in Texas. No relevant state law.
not restricted
Utah
-- -- --- --
Vermont
Shellfish Date labeling R. 1. Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible 12-5 Vt. Code R. §
required label that identifies the: . . . b. The “sell by” date for packages with a capacity of less than 30:5-204 (2013).
1.87 L (one-half gallon) or the date shucked for packages with a capacity of 1.87 L (one-half
gallon) or more.
Sale after date Not restricted for shellfish in Vermont. No relevant state law.
not restricted
Virginia
Dairy Definition (dairy “Dairy product” means butter, natural or processed cheese, dry whole milk, nonfat dry 2 Va. Admin. Code §
products) milk, dry buttermilk, dry whey, evaporated whole or skim milk, condensed whole milk and 5-531-10 (2013).
condensed plain or sweetened skim milk.
Date labeling 4. No person may sell or offer for sale to the final consumer any dairy product in container or 2 Va. Admin. Code §
required package form that does not bear a “sell by date.” 5-531-60 (2013).
Sale after date 5. No person may sell or offer for sale to the final consumer any dairy product in container or 2 Va. Admin. Code §
not permitted package form after the “sell by date” shown on the package. 5-531-60 (2013).
Alteration of 6. No person may change, remove, or replace the “sell by date” on any dairy product in 2 Va. Admin. Code §
date labels not container or package form after the “sell by date” is initially affixed to the package. 5-531-60 (2013).
permitted
Shellfish Date labeling A. Raw shucked shellfish shall be obtained in nonreturnable packages that bear a legible 2 Va. Admin. Code §
required label that identifies the: . . . “sell by” or “best if used by” date for packages with a capacity of 5-585-400 (2013).
less than one-half gallon (1.87 L) or the date shucked for packages with a capacity of one-half
gallon (1.87 L) or more.
Sale after date Not restricted for shellfish in Virginia. No relevant state law.
not restricted
|
Washington*
Perishable Definition (pull (2) “Pull date” means the latest date a packaged food product shall be offered for sale to the Wash. Rev. Code Ann. §
Packaged date) public. 69.04.900 (2013).
Food Goods Definition (shelf (3) “Shelf life” means the length of time during which a packaged food product will retain its Wash. Rev. Code Ann. §
life) safe consumption quality if stored under proper temperature conditions. 69.04.900 (2013).
Definition (1) “Perishable packaged food goods” means and includes all foods and beverages, except Wash. Rev. Code Ann. §
(perishable alcoholic beverages, frozen foods, fresh meat, poultry and fish and a raw agricultural 69.04.900 (2013).
packaged food commodity as defined in this chapter, intended for human consumption which are canned,
goods) bottled, or packaged other than at the time and point of retail sale, which have a high risk of
spoilage within a period of thirty days, and as determined by the director of the department of
agriculture by rule and regulation to be perishable.
Date labeling All perishable packaged food goods with a projected shelf life of thirty days or less, which are Wash. Rev. Code Ann. §
required offered for sale to the public after January 1, 1974 shall state on the package the pull date. 69.04.905 (2013).
Sale after Can products be sold after the pull date? Yes, products can be sold after the pull date has Wash. Admin. Code §
date not expired if they are still wholesome, not a danger to health and clearly labeled indicating that 16-142-130 (2013).
permitted (with the pull date has expired. They must be separated from products that are still within pull date.
exemptions)
Alteration of Can pull dates be changed? No, pull dates on perishable packaged foods subject to pull dating Wash. Admin. Code §
date labels not may not be changed, crossed-out or concealed. 16-142-150 (2013).
permitted
Washington, D.C.
General Definition (pull Pull date -- the date after which the food may not be sold, unless isolated and prominently D.C. Mun. Regs. tit. 25-
date) labeled as being beyond the last date on which the food should be sold without a significant A, § 9901 (2013).
risk of spoilage, loss of palatability if stored by the consumer after that date and in the
manner which the food can reasonably be expected to be stored.
Potentially Date labeling 718.1 All pasteurized fluid milk, fresh meat, poultry, fish, bread products, eggs, butter, cheese, D.C. Mun. Regs. tit.
Hazardous required cold meat cuts, mildly processed pasteurized products, and potentially hazardous foods 25-A, § 718 (2013).
Foods, Dairy, sold in food-retail establishments which are pre-wrapped and not intended to be eaten on
Meat/Poultry, the premises of the food establishment shall have easily understood pull dates prominently
Eggs displayed on their containers.
Sale after date Pull date -- the date after which the food may not be sold, unless isolated and prominently D.C. Mun. Regs. tit. 25-
not permitted labeled as being beyond the last date on which the food should be sold without a significant A, § 9901 (2013).
risk of spoilage, loss of palatability if stored by the consumer after that date and in the
manner which the food can reasonably be expected to be stored.
Alteration of 718.2 If any food that has a pull date is rewrapped, the new package shall retain the original D.C. Mun. Regs. tit.
date labels not pull date and the word “REWRAPPED” shall be prominent displayed on the package. 25-A, § 718 (2013).
permitted
Packaged Date labeling Date labeling not required for packaged perishable food in Washington, D.C. No relevant state law.
Perishable not required
Food Sale after date No person shall sell, trade, or barter any perishable packaged food beyond the pull date D.C. Mun. Regs. tit.
not permitted appearing thereon. 25-B, § 3606 (2013).
Alteration of 3606.2 No person shall rewrap or repackage any packaged perishable food with the intention D.C. Mun. Regs. tit.
date labels not of placing a pull date on the food that is different from the original pull date. 25-B, § 3606 (2013).
permitted
Shellfish Date labeling 2403.5 Each individual package containing less than sixty-four fluid ounces (64 fl. oz.) of fresh D.C. Mun. Regs. tit.
required or frozen shellfish shall be labeled with the following information: . . . (b) A “Sell by” date 25-B, § 2403 (2013).
which provides a reasonable subsequent shelf-life or the words “Best if used by” followed by
a date when the product would be expected to reach the end of its shelf-life.
Sale after date Not restricted for shellfish in Washington, D.C. No relevant state law.
not restricted
|
West Virginia*
Eggs Date labeling 6.5 Egg producers who own three thousand birds or less shall denote the expiration date of W. Va. Code R. § 61-
required the eggs on the outside container in which the egg cards are transported or on an invoice 7A-6 (2013).
provided to the retailer.
Sale after date Not restricted for eggs in West Virginia. No relevant state law.
not restricted
Wisconsin
Eggs Date labeling (1) (e) One of the following dates, in addition to the packing date under par. (d): Wis. Admin. Code
required 1. An expiration date or “sell by” date after which the eggs may not be offered for sale or Agric. Trade &
sold at retail. The expiration date may not be more than 30 days from the packing date, Consumer Prot. § 88-
including the day on which the eggs were packed. The expiration date or “sell by” date shall 08 (2013).
be designated by at least the first three letters of the month and the date within that month.
The date shall be accompanied by a phrase or abbreviation such as “sell by” or “EXP” which
clearly identifies it as an expiration date or “sell by” date.
2. A “use by” date consisting of at least the first 3 letters of the month, and the date within
that month. The date shall be accompanied by a phrase such as “use by,” “best if used by” or
“use before,” which indicates that the consumer should use the eggs before that date.
Sale after date (4) (a) No eggs may be sold as whole eggs at retail after the expiration or “sell by” date Wis. Admin. Code
not permitted specified for those eggs under subs. (1) (e) 1. or (2) (g) 1. If otherwise used as human food, the Agric. Trade &
eggs shall meet at least grade B egg standards. Consumer Prot. § 88-
08 (2013).
Alteration of (4) (b) Eggs labeled with dates under subs. (1) (e) or (2) (g) shall retain those dates and may not Wis. Admin. Code
date labels not be repackaged or relabeled with any other dates. Agric. Trade &
permitted Consumer Prot. § 88-
08 (2013).
Shellfish Date labeling 3-202.17 (A) Raw shucked shellfish shall be obtained in nonreturnable packages which bear Wis. Admin. Code
required a legible label that identifies the: . . . (2) The “sell by” date for packages with a capacity of Agric. Trade &
less than 1.87 L (one-half gallon) or the date shucked for packages with a capacity of 1.87 L Consumer Prot. §75,
(one-half gallon) or more. App. (2013).
Sale after date Not restricted for shellfish in Wisconsin. No relevant state law.
not restricted
Wyoming
Shellfish Date labeling (a) Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible AGR FSF 3 Wyo. Code
required label that identifies the: . . . (ii) The “sell by” date for packages with a capacity of less than R. § 11 (2013).
one-half (2) gallon (1.871) or the date shucked for packages with a capacity of one-half (2)
gallon (1.87 1) or more.
Sale after date Not restricted for shellfish in Wyoming. No relevant state law.
not restricted
|
Endnotes 19 U.S. Gov’t Accountability Office, MWD-75-19, Food Labeling:
Goals, Shortcomings, and Proposed Changes 44 (1975),
1 Dana Gunders, Natural Resources Def. Council, Wasted: How
available at http://www.gao.gov/assets/120/115505.pdf.
America Is Losing Up to 40% of Its Food from Farm to Fork to
Landfill 12 (2012). 20 Id.
2 Jonathan Bloom, American Wasteland xii (Da Capo Lifelong 21 Ransom, supra note 18, at 1763.
Books, 2011). 22 See Gov’t Accountability Office, supra note 19, at 43. When the
3 Gunders, supra note 1, at 13. New York State Consumer Protection Board released a book
that allowed consumers to decipher closed dates in the early
4 Food Security in the U.S., U.S. Dep’t of Agric. Econ. Research
1980s, the agency was inundated with more than 100,000
Serv. (last updated Sept. 4, 2012), http://www.ers.usda.gov/
requests for the publication in the first year. See Inst. of Food
topics/food-nutrition-assistance/food-security-in-the-us/
Technologists, supra note 17, at 89.
key-statistics-graphics.aspx (last visited Apr. 4, 2013).
23 A USDA study from 1973 found that more than 60 retail
5 Gunders, supra note 1, at 4. According to another statistic,
chains, comprising about 15,000 food stores nationwide, had
redistributing only 2 percent of food waste could provide the
implemented open dating systems. See Gov’t Accountability
needed calories/day/person to lift all food insecure Americans
Office, supra note See Gov’t Accountability Office, supra note
above the hunger line. Marlene White, American Wasteland:
19, at 45. While open code dating became more prevalent in
Jonathan Bloom on Why Food Waste Deserves Our Attention,
the 1970s, the practice itself can be traced back further. There
worldwatch.org (Mar. 14, 2012), http://blogs.worldwatch.org/
is evidence of open dates being used as early as 1917, and
nourishingtheplanet/american-wasteland-jonathan-bloom-
in the 1930s Consumer Reports found that consumers had
on-why-food-waste-deserves-our-attention (last visited July 3,
a desire for a more shopper-friendly date label system. See
2013).
Theodore P. Labuza & Lynn M. Szybist, Open Dating of Foods 7
6 McKinsey Global Inst., Resource Revolution: Meeting The (2001).
World’s Energy, Materials, Food, And Water Needs 72 (2011).
24 Gov’t Accountability Office, supra note 19, at 45.
7 Jean C. Buzby & Jeffrey Hyman, Total and Per Capita Value of
25 Id. at 43.
Food Loss in the United States, 37 Food Pol’y 561, 562 (2012).
26 Office of Tech. Assessment, supra note 15, at 1
8 McKinsey Global Inst., supra note 6, at 72.
27 Id. at 5.
9 Kevin D. Hall et al., The Progressive Increase of Food Waste
in America and Its Environmental Impact, 4 PLoS ONE 28 Id.
1, 2(2009), available at http://www.plosone.org/article/ 29 Carol Haddix, Congress Made Food Label a Big Deal, Chicago
info%3Adoi%2F10.1371%2Fjournal.pone.0007940. Tribune, Jan 12, 1978, at F19, available at ProQuest Historical
10 Bloom, supra note 2, at xi. Newspapers, Doc. No. 169689062.
11 Id. at 187. 30 Gov’t Accountability Office, supra note 19, at 48.
12 See, e.g., WRAP, Consumer Insight: Date Labels and Storage 31 Id.
Guidance (2011), available at http://www.wrap.org.uk/sites/ 32 Id.
files/wrap/Technical_report_dates.pdf; Gunders, supra note 1,
at 12-13; Bloom, supra note 2, at 164-67. 33 Id. at 49.
13 Bloom, supra note 2, at 166. 34 See S. 2373, 93d Cong., 1st Sess. (1973) (the one bill that
did eventually pass the Senate). See also Office of Tech.
14 Bio Intelligence Serv., Preparatory Study on Food Waste Across Assessment, supra note 15, at 3.
EU 27, at 124-27 (2010).
35 Select Comm. On Nutrition & Human Needs, 93d Cong.,
15 Office of Tech. Assessment, Open Shelf-Life Dating of National Nutrition Policy: Nutrition and the Consumer,
Food 1 (1979), available at www.princeton.edu/~ota/ Working Paper 11 (Comm. Print 1974) (prepared by Freeman
disk3/1979/7911/7911.PDF (last visited Dec. 21, 2012). H. Quimby & Cynthia B. Chapman).
The Office of Technology Assessment was an office of the
United States Congress from 1972 to 1995. Its reports on 36 See Id.
technological and scientific issues were widely praised for 37 92 Cong. Rec. S201101-11 (June 16, 1971) (statement of Sen.
their objectivity and authoritative analysis. See Technology Hartke).
Assessment and Congress, Federation of American Scientists’
38 Food Amendments of 1974: Hearing on S. 2373 and
Office of Technology Assessment Archive, http://www.fas.org/
Amendments 962 and 1053, and S. 3012 Before the S. Comm.
ota/technology_assessment_and_congress/ (last visited July 3,
on Commerce, 93rd Cong. 219 (1974) (statement of Thomas K.
2013).
Zaucha of the National Association of Food Chains.)
16 Id. at 1.
39 Harvey L. Hensel, Look What Consumerism Has Done Now, 29
17 Id.; see also Inst. of Food Technologists, Open Shelf-life Dating Food Drug Cosm. L.J. 220, 226 (1974).
of Food, 35 Food Tech. 89, 89 (1981).
40 Id. at 227-28 (1974).
18 Gerri Ransom, National Advisory Committee on
41 Gov’t Accountability Office, supra note 19, at 44, 47; Inst. of
Microbiological Criteria for Foods, Consideration for
Food Technologists, supra note 17, at 94-96.
Establishing Safety-Based Consume-By Date Labels for
Refrigerated Ready-to-Eat Foods, 68 J. of Food Protection 1761, 42 Gov’t Accountability Office, supra note 19, at 46-47.
1763 (2005).
43 Id. at 48.
|
44 See, e.g., Hensel, supra note 39, at 227; Select Comm. on 62 FDA regulates food safety practices in the production and
Nutrition and Human Needs, supra note 35, at 11. harvesting of raw fruits and vegetables under FSMA. 21 U.S.C.
§ 2201-52 (2011). USDA regulates the marketing, inspection,
45 Hensel, supra note 39, at 227 (noting that in 1974 sixteen open
and certification of fresh fruits and vegetables under the
code dating state laws already existed, and also that twenty-
Perishable Agricultural Commodities Act of 1930 and other
three states were in the process of introducing eighty-four
legislation. 7 U.S.C. 499 (2012); 7 C.F.R. § 51 (2013). See also 7
open code dating bills in the legislative session).
U.S.C. § 1621 (2012).
46 Id. at 227-28.
63 21 U.S.C. § 331(b) (2012). See also 21 U.S.C. § 343 (2012).
47 Gov’t Accountability Office, supra note 19, at 49.
64 21 U.S.C. § 331(b) (2012).
48 H.R. 1346, 106th Cong. (1999). Congressman Pallone
65 21 U.S.C. § 331(b) (2012). A label may be deemed misleading
reintroduced the same bill in 2001, 2003, and 2005 with no
under the FD&CA not only if its language makes misleading
success. See H.R. 1816, 107th Cong. (2001); H.R. 1495, 108th
representations, but also if the label fails to reveal important
(2003); H.R. 2235, 109th (2005).
information to the consumer. 21 U.S.C. § 321(n) (2012). See
49 See H.R. 2897, 106th Cong. (1999); H.R. 2611, 107th Cong. also 21 U.S.C. § 341 (2012).
(2001); H.R. 468, 108th Cong. (2003); H.R. 3570, 109th Cong.
66 21 U.S.C. § 607(e) (2012); 9 C.F.R. § 317.8 (2013); 21 U.S.C. §
(2005); H.R. 4233, 110th Cong. (2005); HR 2087, 111th Cong.
453 (h) (2012); 9 C.F.R. § 381.126(a) (2013); 7 U.S.C. § 499b(4)
(2009).
(2012). The Agricultural Marketing Act of 1946 gives authority
50 H.R. 2087, 111th Cong. (2009). to the Agricultural Marketing Service, another agency within
51 H.R. 2087, 111th Cong., ¶ 6 (2009). USDA, to regulate labeling for eggs under the voluntary
grading program for eggs. 21 U.S.C. § 1036(b) (2012); 7 C.F.R. §
52 H.R. 2087, 111th Cong., ¶ 2 (2009); 21 C.F.R. § 101.9(j) (2013). 56.36 (2013).
53 H.R. 2087, 111th Cong., ¶ 1 (2009). 67 21 U.S.C. § 463(a) (2012); 21 U.S.C. § 607(c) (2012); 21 U.S.C §
54 Fact Sheets: Food Product Dating, U.S. Dep’t of Agric. Food 1043 (2012). Under the Perishable Agricultural Commodities
Safety & Inspection Serv., http://www.fsis.usda.gov/wps/ Act of 1930, USDA may also promulgate regulations. 7 U.S.C. §
portal/fsis/topics/food-safety-education/get-answers/food- 499(o) (2012).
safety-fact-sheets/food-labeling/food-product-dating/food- 68 21 U.S.C. § 453(h) (2012); 21 U.S.C. § 607(e) (2012); 21 U.S.C. §
product-dating (last visited July 3, 2013). The exception to 1036(b) (2012).
this rule is infant formula, for which the federal government
requires a “use by” date. See 21 C.F.R. § 107.20 (2013). 69 21 U.S.C. § 457(b) (2012); 21 U.S.C. 607(c) (2012).
55 Eastern Research Grp., Inc., Current State of Food Product 70 21 U.S.C.§ 1031 (2012).
Open Dates In The U.S. 1-13 (2003). 71 63 Fed. Reg. 27502, 27507 (May 19, 1998).
56 U.S. Const. art I, § 8, cl. 3. Congress shall have the power “to 72 15 U.S.C. § 45(1) (2012); Fed. Trade Comm’n, About the Federal
regulate commerce with foreign Nations, among the several Trade Commission, http://www.ftc.gov/ftc/about.shtm (last
States, and with the Indian Tribes.” visited August 4, 2013).
57 See supra notes 26-30 and accompanying text. 73 15 U.S.C. § 1454(c) (2012).
58 Food & Drug Admin., About FDA, http://www.fda.gov/ 74 15 U.S.C. § 1454(c) (2012); Memorandum of Understanding
AboutFDA/Transparency/Basics/ucm242648.htm (last visited Between The Federal Trade Commission and The Food and
July 31, 2013); U.S. Dep’t of Agric. Food Safety & Inspection Drug Administration, MOU 225-71-8003 (1971), available at
Serv., Food Product Dating, supra note 54. http://www.fda.gov/AboutFDA/PartnershipsCollaborations/
59 21 U.S.C. §§ 301-392 (2012); 21 C.F.R. § 1.4 (2012); 21 U.S.C. § MemorandaofUnderstandingMOUs/DomesticMOUs/
343-1 (2012); 15 U.S.C. §§ 1451-1461 (2012); 21 C.F.R. § 10.40 ucm115791.htm.
(2013); 7 U.S.C. 499 (2012); 21 U.S.C. § 2201-52 (2012). See 75 21 U.S.C. § 331(b) (2012); See also 21 U.S.C. § 343 (2012); See
also, U.S. Dep’t of Agric., Food Safety & Inspection Serv., A also Gov’t Accountability Office, supra note 19, at 49.
Guide to Federal Food Labeling Requirements for Meat and
76 FDA Basics, Food and Drug Administration, http://www.fda.
Poultry Products 6 (2007).
gov/AboutFDA/Transparency/Basics/ucm210073.htm (last
60 21 U.S.C. §§ 451-472 (2012); 21 U.S.C. §§ 601-695 (2012); 21 updated Apr. 13, 2012). See appendix for full law.
U.S.C. §§ 1031-1056 (2012); 12 U.S.C. § 1141 (2012); 7 C.F.R. §
77 FDA’s infant formula regulation requires that manufacturers
2.79 (a)(1) (2013); 7 C.F.R. § 2.53 (2013); 9 C.F.R. § 300.2 (2013).
set a “use by” date “on the basis of tests or other information”
See Regulations & Policies: Regulations for Package Dating,
showing that the formula will remain of sufficiently
U.S. Dep’t of Agric. Food Safety & Inspection Serv., http://
high quality “under the conditions of handling, storage,
www.fsis.usda.gov/regulations/Regs_for_Package_Dating/
preparation, and use prescribed by label directions.” 21 C.F.R.
index.asp (last visited Apr. 18, 2013).
§ 107.20 (2012).
61 FDA regulates shell eggs and USDA regulates processed egg
78 Toby Milgrom Lebin, The Infant Formula Act of 1980: A Case
products as well as certified shell eggs under a voluntary
Study of Congressional Delegation to the Food and Drug
grading program. 21 U.S.C. §§ 1031-1056 (2012); 21 U.S.C. §§
Administration, 42 Food Drug Cosm. L.J. 101-104 (1987);
301-392 (2012). Under the Egg Products Inspection Act, FDA
House Subcomm. On Oversight and Investigations of the
and USDA share responsibility over egg products; USDA has a
Comm. On Interstate and Foreign Commerce, 96th Cong., 2d
primary role. 63 Fed. Reg. 27502, 27508 (May 19, 1998).
Sess., Infant Formula: Our Children Need Better Protection 3
(Comm. Print 96-IFC 42).
|
79 21 U.S.C. § 350a (1980); Infant Formula Act of 1980, Pub L. No. 94 Id. at 154-55.
96-359, 94. 1190 (codified at 21 U.S.C. §§ 350a, 301, 321 (aa),
95 See id.
331, 374(a) (1980)). See also Toby Milgrom Lebin, The Infant
Formula Act of 1980: A Case Study of Congressional Delegation 96 Id.
to the Food and Drug Administration, 42 Food Drug Cosm. 97 Id. at 9-13.
L.J. 101-104 (1987); House Subcomm. On Oversight and
Investigations of the Comm. On Interstate and Foreign 98 Id.
Commerce, 96th Cong., 2d Sess., Infant Formula: Our Children 99 FDA Food Code, U.S. Dep’t of Health & Human Servs., Food
Need Better Protection 3 (Comm. Print 96-IFC 42). & Drug Admin., http://www.fda.gov/Food/FoodSafety/
80 21 U.S.C. § 350a (1980); Infant Formula Act of 1980, Pub L. No. RetailFoodProtection/FoodCode/default.htm (last visited Jan.
96-359, 94. 1190 (codified at 21 U.S.C. §§ 350a, 301, 321 (aa), 16, 2013).
331, 374(a) (1980)). 100 Id.
81 21 C.F.R. § 107.20(c) (2013). 101 Id.
82 21 C.F.R. § 107.20 (2013). 102 Id. at §§ 3-202.17, 3-203.11.
83 See U.S. Dep’t of Agric. Food Safety & Inspection Serv., 103 Id. at §§ 3-501.17, 3-501.18.
Requirements for Meat and Poultry Products, supra note 59,
104 Id. at §§ 3-502.12.
at 4. USDA does explicitly require a “pack date” for poultry
products in the form of a closed code or a calendar date. 9 105 Id. at § 3-202.17, ¶ (A)(2).
C.F.R. § 381.126 (2012). See also Labeling Compliance Policy 106 Id. at §§ 3-501.17, ¶ (A).
Guide on Poultry Food Product Dating, U.S. Dep’t of Agric.,
Food Safety & Inspection Serv. 2 (2010), available at http:// 107 Id.
www.fsis.usda.gov/PDF/labeling_guide_on_poultry_food_ 108 Id. at § 3-202.17; Ark. Admin. Code 007.04.8-3-202.17; Cal
dating.pdf. Health & Safety Code §114039 (2011); 4000 Del. Admin. Code
84 See U.S. Dep’t of Agric., Agric. Mktg. Serv., Ams PY Instruction §3-202.17 (2013); Ga. Comp. R. & Regs. 40-7-1-.10 (2013); 410
No. 910, Shell Eggs Grading Handbook, Section 5 (2012); Agric. Ind. Admin. Code 7-24-156 (2013); N.J. Admin. Code § 8:24-3.2
Mktg. Serv., U.S. Dep’t of Agric. Egg Carton Labeling (Aug. 15, (2013); N.D. Admin. Code 33-33-04-03.1 (2013); Okla. Admin.
2006), available at http://www.ams.usda.gov/AMSv1.0/ams. Code § 310:257-5-15 (2013); 7 Pa. Code § 46.246 (2013); 12-5
fetchTemplateData.do?template=TemplateN&navID=PYEgg Vt. Code R. § 30:5-204 (2013); 2 VA. Admin. Code § 5-585-400
CartonLabeling1Nav1-200&rightNav1=PYEggCartonLabelin (2013); Wis. Admin. Code Agric. Trade & Consumer Prot. §75,
g1Nav1-200&topNav=&leftNav=CommodityAreas&page=PY App. (2013); AGR FSF 3 Wyo. Code R. § 11 (2013).
EggCartonLabeling2&resultType=&acct=pgeninfo. For all egg 109 35A Am. Jur. 2d Food § 10 (2012). U.S. Const. art 6, cl. 2. “This
products certified by USDA, “all cartons, overwraps, and other Constitution, and the Laws of the United States . . . shall be the
types of consumer packages bearing the USDA grademark supreme Law of the Land; and the Judges in every State shall
require legible lot numbering on the consumer package” or be bound thereby, any Thing in the Constitution or Laws of
a “pack date.” Further, if manufacturers choose to use code any State to the Contrary notwithstanding.”
dating using terms such as “use by,” “use before,” or “best
110 35A Am. Jur. 2d Food § 10 (2012).
before” on USDA shield eggs, the date utilized should not
exceed 45 from the day the eggs were packed. However, eggs 111 Theodore P. Labuza & Lynn M. Szybist, Current Practices and
not packed in USDA facilities do not need to follow the same Regulations Regarding Open Dating of Food Products 30 (The
rules, instead, “eggs that are not packed under USDA’s grading Retail Food Industry Ctr., Working Paper No. 01, 1999).
program must be labeled and coded in accordance with egg 112 Ga. Comp. R. & Regs. 40-7-1-.02 (2013).
laws in the State where they are packed and/or sold.” Id.
113 Ga. Comp. R. & Regs. 40-7-1-.02 (2013); Ga. Comp. R. & Regs.
85 U.S. Dep’t of Agric. Food Safety & Inspection Serv., Food 40-7-1-.26 “Labeling”
Product Dating, supra note 54.
114 See Inst. of Food Technologists, supra note 17, at 94.
86 See id.; 9 C.F.R. §317.8(b)(32)(i) (2013).
115 The USDA Food Safety and Inspection Service reports that
87 9 C.F.R. § 317.8(b)(32)(2) (2013). only about forty percent of states require date labeling for
88 Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, some food items, but our research found restrictions in more
Handbook 130: Uniform Laws and Regulations in the Areas of states. See U.S. Dep’t of Agric. Food Safety & Inspection Serv.,
Legal Metrology and Engine Fuel Quality 1 (2013), available at Food Product Dating, supra note 54.
http://www.nist.gov/pml/wmd/pubs/upload/hb130-13-final. 116 105 Mass. Code Regs. § 520.119(F) (2013).
pdf.
117 Massachusetts has adopted one of the more extreme
89 About NCWM, Nat’l Conference on Weights & Measures, approaches in this regard, requiring a “sell by” or “best if used
http://www.ncwm.net/about (last visited July 3, 2013). by” date for the sale of all perishable and semi-perishable
90 Nat’l Inst. of Standards & Tech., supra note 88, at 149. foods. 105 Mass. Code Regs. § 520.119(D) (2013).
91 Id. at 9. 118 Md. Code Regs. 10.15.06.10 (2013).
92 Id. The model regulation recommends two options for 119 Minn. Stat. § 31.783 (2013).
implementation—states are advised to either require 120 Minn. R. 1520.1900 (2013).
mandatory open dating or to allow voluntary open dating that
must adhere to the strictures of the model regulation. 121 Minn. R. 4626.0200 (2013).
93 Id. at 153-55. 122 Nat’l Inst. of Standards & Tech., supra note 88, at 9-13.
|
123 Mich. Comp. Laws Ann. § 289.8107 (2013). “generate positive consumer evaluations when framed as a
cause-related marketing activity to reduce waste”). See also
124 31-3-5 R.I. Code R. § 21-33-PBP 2.00 (2013).
Michael Tsiros & Carrie M. Heilman, The Effect of Expiration
125 N.H. Code Admin. R. Agr 1412.04 (2013), Ga. Comp. R. & Regs. Dates and Perceived Risk on Purchasing Behavior in Grocery
40-7-1.26 (2013). Store Perishable Categories, 69 J. of Mktg. 114, 115-16 (2005)
126 Minn. Stat. § 31.786 (2013); Ohio Rev. Code Ann. § 3715.171 (marketing study modeling “the process by which consumers
(2013). formulate perceptions of brand quality after [] exposure to
EDPB practice”).
127 Current as of August 2013. See appendices for qualifications of
regulations assessed in this report. 144 Eastern Research Grp., Inc., supra note 55, at 3-6.
128 Current as of August 2013. See appendices for qualifications of 145 Id. at 3-1.
regulations assessed in this report. Note that the type of date 146 Id. at 3-4.
after which sale is restricted varies.
147 Id. at 3-6.
129 Alabama is unique in that it is the only state that does not
148 Id. at 3-5.
affirmatively require the presence of date labels on any foods
but then regulates such date labels once they are applied to 149 Id. at 1-6.
foods and in some cases forbids the sale of foods after those
150 Id. at 3-2.
dates. See Ala. Code Ann. § 20-1-27 (2013); Ala. Admin. Code r.
420-3-22.03 (2013); Ala. Admin. Code r. 420-3-22.03 (2013). 151 Id.
130 Current as of August 2013. See appendices for qualifications of 152 Labuza & Szybist, Current Practices and Regulations, supra
regulations assessed in this report. note 111, at 10.
131 Note that states define “perishable foods” differently, so this 153 Eastern Research Grp., Inc., supra note 55, at 3-2.
term may include some variety of the other food items listed 154 Id. at 3-1.
here, such as eggs, meat, and dairy.
155 Dan Charles, Don’t Fear that Expired Food, NPR
132 Potentially hazardous foods are generally defined as those (Dec. 26, 2012), http://www.npr.org/blogs/
foods that require time/temperature control for safety. thesalt/2012/12/26/167819082/dont-fear-that-expired-food
However, different states include various food items within (last visited July 3, 2013).
their definitions of potentially hazardous foods, so this term
may include some variety of the other food items listed here, 156 Eastern Research Grp., Inc., supra note 55, at 3-1.
such as eggs, meat, and dairy. 157 Id. at 3-9.
133 Baltimore, Md. Code § 6-505.1 (2009). 158 Id. at 3-10.
134 Telephone Interview with representative of N.Y. State Dep’t. of 159 Id.
Agric. & Mktg. (Nov. 28, 2011).
160 The FDA’s infant formula guidelines for testing with regard to
135 Dep’t of Health & Mental Hygiene, Board of Health, Notice of nutrient content represent one important exception. See 21
Adoption of a Resolution Repealing Articles 111 and 117 of C.F.R. § 107.20 (2013).
the New York City Health Code 2 (2010), available at http://
161 Labuza & Szybist, Current Practices and Regulations, supra
www.nyc.gov/html/doh/downloads/pdf/notice/2010/notice-
note 111, at 40.
article-111-117-noa.pdf.
162 Eastern Research Grp., Inc., supra note 55, at 3-13.
136 Id. at 3.
163 Mary Bender Brandt et al., Ctr. for Food Safety & Applied
137 Id.
Nutrition, FDA, Prevalence of Food Safety, Quality, and Other
138 Eastern Research Grp., Inc., supra note 55, at 1-12. Consumer Statements on Labels of Processed, Packaged Foods,
139 Id. 23 Food Protection Trends 870, 876 (2003).
140 See Christine Blank, Good News on Unsaleables?, Supermarket 164 See Blank, supra note 140.
News (July 19, 2004), http://supermarketnews.com/archive/ 165 Brandt, supra note 163.
good-news-unsaleables .
166 Directive 2000/13/EC of the European Parliament and of the
141 Id. Council of 20 March 2000 on the Approximation of the Laws
142 Food Mktg. Inst., The Sustainability Opportunity for Retail of the Member States Relating to the Labelling, Presentation,
and Wholesale Executives, available at http://www.fmi.org/ and Advertising of Foodstuffs, 2000 O.J. (L 109), Art. 3 (“E.U.
industry-topics/sustainability/key-sustainability-tools-and- Food Labeling Directive”). The Directive is implemented
resources/getting-started-tools (click on “The Sustainability in Great Britain by the Food Labelling Regulations 1996
Opportunities for Retail and Wholesale Executives”)(last (FLR).According to the FLR, food ready for delivery to the
visited July 22, 2013) (indicating that 92% of consumers agree ultimate consumer or to catering establishments must
that it is important for the U.S. food industry “to be more carry an “appropriate durability indication,” in the form of
proactive about addressing environmental concerns”). either a “best before” date or a “use by” date. Food Labelling
Regulations, 1996, S.I. 1996/1499, (20)–(22)(U.K.).
143 Aristeidis Theotokis et al., Effects of Expiration Date-Based
Pricing on Brand Image Perceptions, 88 J. of Retailing 72, 72 167 Bus. Reference Panel, Better Regulation of ‘Use by’ Date
(2012) (highlighting findings of consumer behavior studies Labelled Foods: A Business Review 11 (2011).
showing that expiration date-based pricing (EDPB) may
|
168 Id. at 6. According to the FLR, it is an offense to sell food after 172; Telephone Interview with Dr. Elliot Ryser, Professor of
the use-by date. This is unique to the United Kingdom, and is Food Science & Human Nutrition, Mich. State Univ. (Nov. 1,
not required in the E.U. Food Labeling Directive. 2012). Susceptible populations include pregnant women,
older adults, and those with chronic illnesses such as AIDS,
169 See Dep’t for Env’t, Food & Rural Affairs, Guidance on the
cancer, and diabetes. See Who’s At Risk, FoodSafety.gov, http://
Application of Date Labels to Food (Sept. 2011).
www.foodsafety.gov/poisoning/risk (last visited Sept. 5, 2013).
170 Id. at 14. The decision tree explains to manufacturers that
191 Bus. Reference Panel, supra note 168, at 19.
“‘best before’ dates relate to food quality, including taste,
texture, aroma and appearance, whilst “use by” dates relate 192 See Labuza & Szybist, Current Practices and Regulations, supra
to food safety.” Thus “best before” is appropriate for the vast note 111, at 11-15.
majority of foods, and “’use by’ is the required form of date
193 Van Garde & Woodburn, supra note 185, at 329.
mark for those foods which are highly perishable from a
microbiological point of view and which are in consequence 194 Labuza & Szybist, Current Practices and Regulations, supra
likely after a relatively short period to present a risk of food note 111, at 19-20.
poisoning.” Id. at 6-7. 195 Office of Tech. Assessment, supra note 15, at 21.
171 Id. at 7. 196 Bus. Reference Panel, supra note 168, at 1.
172 Telephone Interview with Dr. Theodore P. Labuza, Professor of 197 Kosa et al., supra note 177, at 1218.
Food Science, Univ. of Minn. (Oct. 10, 2012).
198 Ctr. for Food Safety & Applied Nutrition, Food & Drug
173 Serri Graslie, Willing To Play The Dating Game With Your Admin. & Food Safety & Inspection Serv., U.S. Dep’t of Agric.,
Food? Try A Grocery Auction, NPR (Aug. 23, 2012), http://www. Quantitative Assessment of Relative Risk to Public Health
npr.org/blogs/thesalt/2012/08/23/159601015/willing-to-play- from Foodborne Listeria monocytogenes Among Selected
the-dating-game-with-your-food-try-a-grocery-auction. Categories of Ready-to-Eat Foods viii (2003) [hereinafter
174 Labuza & Szybist, Current Practices and Regulations, supra Quantitative Assessment].
note 111, at 20. 199 Id. at viii.
175 U.S. Dep’t of Agric. Food Safety & Inspection Serv., Food 200 Ransom, supra note 18, at 1762.
201 Id. at 1770.
176 See Eastern Research Grp., Inc., supra note 55, at 4-11.
202 Id. at 1761-66.
177 Katherine M. Kosa et al., Consumer Knowledge and Use of
Open Dates: Results of a Web-Based Survey, 70 J. of Food 203 The National Advisory Committee on Microbiological Criteria
Protection 1213, 1218 (2007). for Foods defines “Safety-Based Date Label (SBDL)” thusly:
“Labeling information regarding storage time to control the
178 Id. risk of illness from psychotropic pathogens. An SBDL may
179 U.S. Dep’t of Agric. Food Safety & Inspection Serv., Food be a day/month/year or the number of days after purchase
Product Dating, supra note 54. or opening and may include other statements such as “keep
refrigerated” or “store below 40° F.” Ransom, supra note 18, at
180 Food Mktg. Inst., U.S. Grocery Shopper Trends 144 (2011).
176-63.
Another study found that sixteen percent of consumers
typically throw out milk on its “sell by” date. Labuza & Szybist, 204 Interview with Dr. Theodore P. Labuza, supra note 172. The
Open Dating of Foods, supra note 23, at 92. National Advisory Committee on Microbiological Criteria
for Foods (NACMCF) has defined Ready-to-Eat products as
181 The report was sponsored by the U.S. Department of
“food that is in edible form without additional preparation
Agriculture, Food Safety and Inspection Service; U.S.
to achieve food safety (such as heating) but may receive
Department of Health and Human Services, Food and
additional preparation for palatability or aesthetic, epicurean,
Drug Administration, and Centers for Disease Control and
gastronomic, or culinary purposes.” Ransom, supra note 18,
Prevention; U.S. Department of Commerce, National Marine
at 1763.
Fisheries Service; and the U.S. Department of Defense,
Veterinary Service Activity. 205 Ransom, supra note 18, at 1765. Cumulatively, these outbreaks
accounted for 487 illnesses, 235 hospitalizations, and 111
182 Ransom, supra note 18, at 1763.
fatalities. Id. Overall, there are approximately 1,600 cases of
183 Eastern Research Grp., Inc., supra note 55, at 4-11 to -12. listeriosis every year in the U.S. Listeria: Statistics, Ctr. for
Disease Control and Prevention, http://www.cdc.gov/listeria/
184 Id. at 4-11 to -12; Kosa et al., supra note 177, at 1218.
statistics.html (last visited Apr. 13, 2013).
185 Shirley J. Van Garde & Margy J. Woodburn, Food Discard
206 Ransom, supra note 18, at 1765 (noting that ready-to-eat
Practices of Householders, 87 J. of The Am. Dietetic Ass’n 322,
foods were implicated in 9 outbreaks and were suspected
329 (1987).
contributors in a number of the remaining cases; the only
186 Office of Tech. Assessment, supra note 15, at 6. other suspected products were raw vegetables, shrimp, deli
187 U.S. Dep’t of Agric., Food Safety and Inspection Serv., Food meats, and hot dogs).
188 Brandt et al., supra note 163, at 872.
189 Bus. Reference Panel, supra note 168, at 19.
190 Telephone Interview with Dr. Theodore P. Labuza supra note
|
207 See Amit Pal et al., Safety-Based Shelf Life Model for Climate Change and Economic Impacts of Food Waste in the
Frankfurters Based on Time To Detect Listeria Monocytogenes United States, 2 Int. J. Food System Dynamics 431, 441 (2011).
with Initial Inoculum Below Detection Limit, 72 J. Food
224 Bloom, supra note 2, at 187.
Protection 1878, 1882-83 (2009) (discussing the benefits
of using a Time-Temperature Integrator tag or a time- 225 Bloom, supra note 2, at 187; Gunders, supra note 1, at 12.
temperature data logger to account for temperature abuse). 226 See Hall et al., supra note 9, at 2.
208 See generally U.S. Food & Drug Admin., FDA Food Code, supra 227 See Envtl. Prot. Agency, Municipal Solid Waste Generation,
note 99. Recycling, and Disposal in the United States: Facts and Figures
209 See id. § 3. for 2010, at 6 (2010), available at http://www.epa.gov/osw/
nonhaz/municipal/pubs/msw_2010_rev_factsheet.pdf.
210 See id. § 3-501.17 (requiring that potentially hazardous ready-
to-eat foods be “clearly marked to indicate the date or day by 228 Wastes: Reducing Food Waste for Businesses, Envtl. Prot.
which the food shall be consumed on the premises, sold, or Agency, http://www.epa.gov/wastes/conserve/foodwaste/
discarded”). (last visited Apr. 18, 2013).
211 See Guidance on Labeling of Foods That Need Refrigeration 229 See Hall et al., supra note 9, at 3.
by Consumers, 62 Fed. Reg. 8248, 8251 (Feb. 24, 1997). See 230 WRAP, supra note 12, at 9.
also Quantitative Assessment, supra note 198, at xv (noting
that “reformulation of products to reduce their ability to 231 Ransom, supra note 18, at 1763.
support the growth of Listeria monocytogenes or encouraging 232 Van Garde & Woodburn, supra note 185, at 324-25.
consumers to keep refrigerator temperatures at or below 40°
233 Blank, supra note 140.
Fahrenheit” are important parallel interventions); Ransom,
supra note 18, at 1772 (“[T]he impact of temperature on the 234 Raftery Resource Network, Inc., Expired Product Project,
risk of listeriosis [is] significantly greater than the impact of Developed for the Joint Industry Unsaleables Steering
time.”). Committee of Grocery Manufacturers of America & Food
Marketing Institute 2 (July 2003), available at http://
212 Quantitative Assessment, supra note 198, at xii.
www.gmaonline.org/downloads/research-and-reports/
213 Id. at xiv. expiredproducts.pdf.
214 Id. 235 Interview with Doug Rauch, supra note 150; Interview with
215 Id. at viii. Jose Alvarez, former President and CEO of Stop & Shop/Giant-
Landover, Professor, Harvard Bus. Sch., in Allston, MA. (Nov. 9,
216 Conn. Agencies Regs. § 19-13-B42(m)(1)(F) (2012). 2012).
217 Listeriosis (Listeria) and Pregnancy, Centers for Disease 236 Nat’l Inst. of Standards & Tech., supra note 88, at 149.
Control and Prevention, http://www.cdc.gov/pregnancy/
infections-listeria.html (last visited Aug. 10, 2013). 237 Telephone Interview with Mitzi Baum, Dir. of Food Safety,
Feeding America (Mar. 28, 2013).
218 The need for targeted, tailored interventions is reinforced by
the complexities inherent in implementing any regulatory 238 Examples include Lovin’ Spoonful, http://www.
labeling scheme. See Ransom, supra note 18, at 1762, 1768. lovinspoonfulsinc.org (last visited July 3, 2013) (food rescue
organization based in Boston); Food Recovery Network,
219 A similarly tailored approach can be seen in the FDA’s http://www.foodrecoverynetwork.org (last visited July 3,
regulation of infant formula, which is a discrete category 2013) (organization with multiple chapters across college
of products for which specialized labeling regulations have and university campuses in the United States); and Second
been successfully implemented at the federal level. FDA Harvest, http://secondharvest.ca (last visited July 3, 2013) (a
mandates date labels on infant formulate to ensure product large-scale food recovery operation based in Toronto).
quality – not microbial safety. See 21 C.F.R. § 107.20 (2013)
(“A “Use by ______” date, the blank to be filled in with the 239 See Gunders, supra note 1, at 11; Bloom, supra note 2, at 165;
month and year selected by the manufacturer, packer, or see also Serri Graslie, Buying Food Past Its Sell-By Date Tough
distributor of the infant formula on the basis of tests or other To Swallow For Greeks, NPR (Oct. 23, 2012), http://www.npr.
information showing that the infant formula, until that date, org/blogs/thesalt/2012/10/23/163469018/buying-food-
under the conditions of handling, storage, preparation, and past-its-sell-by-date-tough-to-swallow-for-greeks?sc=emaf
use prescribed by label directions, will: (1) when consumed, (last visited July 3, 2013) (describing efforts by the Greek
contain not less than the quantity of each nutrient, as set forth government to encourage food stores to discount past-date
on its label; and (2) otherwise be of an acceptable quality (e.g., foods).
pass through an ordinary bottle nipple).”). 240 For example, in eastern Pennsylvania, the Amish legally
220 Buzby & Hyman, supra note 7, at 561. operate several stores that sell “expired” food at discounted
prices. See Ryan Owens, High Grocery Bills? Get Great Deals on
221 Bloom, supra note 2, at xii. Dated Food, ABC News (Mar. 3, 2008), http://abcnews.go.com/
222 Id. Business/story?id=4472941&page=1#.TsNA9Zz6ZWJ (last
visited July 3, 2013).
223 Buzby & Hyman, supra note 7, at 566 (stating that per capita
food loss is $390/year, putting the total food loss per family 241 See Graslie, supra note 173.
of four at $1,560/year). Another study, using 2009 USDA 242 Telephone Interview with Mitzi Baum, Dir. of Food Safety, and
price data, calculated the average annual value of avoidable Wayne Melichar, Manager of Food Safety, Feeding America
food loss to be $1600 for a family of four. Kumar Venkat, The (Nov. 20, 2012).
|
243 Telephone Interview with Jonathan Bloom, author of 262 See Pal et al., supra note 207, at 1883.
American Wasteland (Oct. 4, 2012).
263 Interview with Dr. Theodore P. Labuza, supra note 172.
244 Interview with Mitzi Baum, supra note 237.
264 Pal et al., supra note 207, at 1883.
245 See, e.g., Bill Emerson Good Samaritan Food Donation Act, 42
265 See, e.g., Waste Watch: Food Fresh Labels, Insignia Technologies,
U.S.C. § 1791 (1996).
http://www.insigniatechnologies.com/portfolio-view/waste-
246 Interview with Mitzi Baum, supra note 237. watch-food-fresh-indicators/ (last visited July 15, 2013); The
UWI Label, UWI Technologies, http://www.uwitechnology.
247 See Ransom, supra note 18, at 1763.
com/pages/label.html (last visited July 15, 2013).
248 Directive 2000/13/EC, supra note 166.
266 Labuza & Szybist, Current Practices and Regulations, supra
249 Dep’t for Env’t, Food & Rural Affairs, supra note 169, at 7. note 111, at 27.
250 See id.; WRAP, supra note 12, at 10 (noting that “one study 267 In the 1970s, FDA had even asserted that it had the ability to
suggests that, although ‘display until’ dates are understood regulate date labels under its existing labeling jurisdiction,
correctly by the majority (81%), they are used by some without the need for additional amendments to the FD&C Act.
consumers to judge food quality (20%) and safety (6%)”). FDA has broad powers to regulate misbranded food, including
251 Dep’t for Env’t, Food & Rural Affairs, supra note 169, at 7. misleading labels, under the FD&CA. 21 U.S.C. § 331 (b)
(2012). See also 21 U.S.C. § 343 (2012). See Gov’t Accountability
252 See, e.g., interview with Doug Rauch, supra note 150; Bloom, Office, supra note 19, at 49.
supra note 2, at 163-67 (discussing the solution proposed by
Hilary Benn and Phil Lempert to obscure sell-by dates). 268 21 U.S.C. § 321(n) (2012). See also 21 U.S.C. § 341 (2012).
253 Food Mktg. Inst., The Sustainability Opportunity for Retail and 269 See Nat’l Inst. of Standards & Tech., supra note 88, at 154-56.
Wholesale Executives, Improving Supply Chain Practices for 270 Kosa et. al., supra note 177, at 1218; Ransom, supra note 18, at
Open Dated Products (2007), available at http://www.fmi.org/ 1763.
forms/store/ProductFormPublic/search?action=1&Product_
271 Van Garde & Woodburn, supra note 185, at 329.
productNumber=2202.
272 See Fact Sheet: Refrigeration and Food Safety, U.S. Dep’t of
254 Notably, USDA regulations currently allow manufacturers
Agric., http://www.fsis.usda.gov/wps/portal/fsis/topics/
to optionally include this kind of “qualifying” language on
food-safety-education/get-answers/food-safety-fact-sheets/
their date labels. See 9 C.F.R. § 381.129 (2013); 9 C.F.R. § 317.8
safe-food-handling/refrigeration-and-food-safety/CT_Index
(2013).
(last visited August 2, 2013) (providing guidelines regarding
255 See, e.g., 21 C.F.R. §101.93 (2013) (mandating disclaimer for the importance of refrigeration and types of bacteria in
certain dietary supplement claims). refrigerated foods).
256 U.S. Dep’t of Agric. Food Safety & Inspection Serv., Food 273 Van Garde & Woodburn, supra note 185, at 329.
274 See, e.g., Foodkeeper Guide, FMI, available at http://www.fmi.
257 WRAP, Freezing refrigerated food - Labelling decision tree org/consumer/foodkeeper (last visited July 3, 2013).
(2011), available at http://www.wrap.org.uk/sites/files/wrap/
275 See, e.g., U.S. Dep’t Agric., Kitchen Companion: Your Safe Food
Freezing%20decision%20tree.pdf.
Handbook 14 (2008), available at http://www.fsis.usda.gov/
258 FDA’s infant formula regulation requires that manufacturers PDF/Kitchen_Companion.pdf (outlining different ways to
set a “use by” date “on the basis of tests or other information” ensure food safety). See also U.S. Dep’t of Health & Human
showing that the formula will remain of sufficiently Servs., Food Safety, Keep Food Safe (last visited, July 20, 2013),
high quality “under the conditions of handling, storage, available at http://www.foodsafety.gov/keep/index.html.
preparation, and use prescribed by label directions.” 21 C.F.R.
276 According to federal law, infant formula must include a “use
§ 107.20 (c) (2013).
by” date. However, states that further regulate this by banning
259 See U.S. Dep’t of Agric., Recommendations of the National or restricting past date sales of infant formula are identified in
Advisory Committee on Microbiological Criteria for this appendix. 21 C.F.R. § 107.20 (2013).
Refrigerated Foods 19 (1990) (recommending that “KEEP
277 Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce,
FROZEN” and “MUST BE KEPT REFRIGERATED” warnings be
Handbook 130: Uniform Laws and Regulations in the Areas of
affixed to food packages and that they be accompanied by a
Legal Metrology and Engine Fuel Quality 13 (2013).
“corresponding logo”). See generally Ransom, supra note 18, at
1761. 278 Infant formula is federally regulated and requires a “use by”
date in all states. 21 C.F.R. § 107.20 (2013).
260 9 C.F.R. § 317.2 (l) (2013); 9 C.F.R. § 381.125 (b) (2013). See
also U.S. Dep’t of Agric., Kitchen Companion: Your Safe Food 279 Infant formula is federally regulated and requires a “use
Handbook 10 (2008), available at http://www.fsis.usda.gov/ by” date in all states. 21 C.F.R. § 107.20 (2013). Georgia’s
PDF/Kitchen_Companion.pdf. See also U.S. Dep’t of Health regulations contain additional language restricting sales after
& Human Servs., Food Safety, Keep Food Safe, available at the “use by” date.
http://www.foodsafety.gov/keep/index.html (last visited July
20, 2013).
261 See Pal et al., supra note 207, at 1883; Interview with Dr.
Theodore P. Labuza, supra note 172.
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How Confusing Food Date Labels Lead To MASSIVE Food Waste in America

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How Confusing Food Date Labels Lead To MASSIVE Food Waste in America

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SEptember 2013

The Dating Game:

I. Standardize and Clarify the Food

The lack of formal definitions or standardization across

Federal Food, Drug

Food and Drug

Fair Packaging and

U.S. Congress Federal Trade Federal Trade

U.S. Department of Federal Meat

* Acts which give authority pertaining to date labeling on foods.

DAIRY INFANT FORMULA

EGGS BAKERY PRODUCTS

SHELLFISH HAZARDOUS FOODS

DAIRY INFANT FORMULA

EGGS BAKERY PRODUCTS

SHELLFISH HAZARDOUS FOODS

Association of Food Industries: Informally recommend open dating of olive oil.

Inconsistent and Unreliable Wording

Figure 6: Distribution of Label Date Types165

Date Stamped* 8.5

0% 5% 10% 15% 20% 25% 30% 35%

Consumer Confusion and

Mistaken Belief that Pre-Date

Food and Drug Administration

Prohibited acts. 21 U.S.C. § 331 (2012).

Definitions and standards for food. 21 U.S.C. § 341 (2012).

Misbranded food. 21 U.S.C. § 343 (2012).

Infant Formula Act. 21 U.S.C. § 350a (2012).

Labeling requirements, directions for use. 21 C.F.R. § 107.20 (2013).

(1) if its labeling is false or misleading in any particular.

False or misleading labeling or containers. 9 C.F.R. § 381.129 (2013).

Federal Meat Inspection Act. 21 U.S.C. §§ 601 et seq. (2012).

USDA Labeling Approval (Meat and Poultry). 9 C.F.R. § 317.4 (2013).

(i) The proposed labeling would not misrepresent the product;

Egg Products Inspection Act. 21 U.S.C. §§ 1031 et seq. (2012).

Perishable Agricultural Commodities Act. 7 U.S.C. § 499a et seq. (2012).

Federal Trade Commission

Fair Packaging and Labeling Act. 15 U.S.C. § 1451 et seq. (2012).

Supporting Chart for Figure 2

PAST-DATE FOODS FOR WHICH PAST-DATE FOODS FOR WHICH

Explanation of Qualifications for Applicable Regulations

• Reduced-oxygen packaged foods, which are regulated in many states

How to Use This Table

**The information contained herein is current as of August 2013.

(K) (1) Exemptions

(K1) (1) Exemptions

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